WOON THEAN MUN v. HONG KONG AIRLINES LTD

HCLA 27/2018

[2023] HKCFI 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 27 OF 2018

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO

LBTC 2604 OF 2011)

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J U D G M E N T

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I. INTRODUCTION

1.  The claimant (“C”) was an employee of the defendant (“D”). On 4 March 2008, C signed an employment contract (of the same date) with D (“EC”) pursuant to which he was employed by D as Manager, Training Projects (“MTP”).^[1] D claimed C’s employment relationship with D ended upon expiry of the EC, and by and under cover of a “payment letter” dated 3 June 2011 to C (“Payment Letter”) D confirmed C’s last working/employment day with D was 3 March 2011,^[2] and made final payment to C for basic salary (1-3 March 2011), 12 days’ annual leave, gratuity (4 March 2008 to 3 March 2011) and employee’s MPF contribution.^[3] But C claimed his employment with D had been renewed, and he suffered damages due to D’s breach of such renewed employment contract.

2.  On 23 August 2011, C commenced his claim against D in LBTC2604/2011 (“LT Action”) in the Labour Tribunal (“Tribunal”) by filing his Claim Form (“Claim Form”)^[4] to seek damages exceeding $32,000,000 for loss of salary, loss of gratuity (at 15% salary), loss of provident fund contributions from 4 March 2011 (day after termination of the EC stated in the Payment Letter) to 3 March 2016 (date of expiry of the renewed employment contract as C alleged), loss of 2,400 flying hours and rise in price of condominium.^[5]

3.  C’s claim in the LT Action was adjourned sine die until it was revived in 2017. It was tried before Deputy Presiding Officer Amy Chak (“DPO”) in October 2018 (“Trial”). C and his witness Captain Ryan Goh (D’s former Head of Corporate Safety,^[6] “Goh”) gave evidence at trial. D called Mr Kenneth Thong (D’s former Chief Executive Officer and then Head of Corporate Governance and Safety International Affairs (“HCG”), “Thong”) to give evidence at trial. On 8 November 2018, the DPO delivered her judgment as follows (“DPO Judgment”) and gave oral reasons therefor:

“1. Judgment be entered against [D] to pay [C] 3-month wages in lieu of notice in the sum of $360,000.00 for item (A): Damage to Salary. [D] shall pay to [C] interest on item (A): Damage to Salary pursuant to Section 39(3) of the Labour Tribunal Ordinance, Cap 25 [“LTO”], and the interest shall be calculated from the date of the award until satisfaction. Payment to be made forthwith.

2. Security of $20,000.00 paid into the [Tribunal] by [C] on 20/09/2011 pursuant to the Award/Order dated 19.09.2011 be refunded to [C].

3. Claim by [C] against [D] for item (B): Damage to Gratuity (At 15% Salary), item (C) Damage to Provident Fund Contributions, item (D) Loss of Flying Hours and item (F) Rise of Price of Condominium be dismissed.

4. No order as to costs.”

4.  C was dissatisfied with the DPO Judgment, so on 21 April 2018 C filed an Application for Leave to Appeal on Point of Law (“Leave Application”) with the Court of First Instance (“CFI”). The Leave Application set out C’s various intended grounds of appeal against the DPO Judgment (“1^st Grounds”),^[7] and reserved C’s right to add further grounds upon receipt of the DPO’s written judgment. In December 2018, C applied for legal aid.^[8] On 23 January 2019, the DPO handed down written Reasons for Decision for the DPO Judgment (“DPO Reasons”).

5.  At the first hearing of the Leave Application before this court on 15 February 2019, C sought an adjournment pending the outcome of his legal aid application. After hearing submissions from C, I adjourned the hearing of the Leave Application to 28 May 2019. In March 2019, the Director of Legal Aid (“DLA”) refused C’s application for legal aid.^[9] C appealed against the DLA’s refusal of legal aid. On 6 May 2019, Master J Wong dismissed C’s legal aid appeal.

6.  Meanwhile on 27 December 2018, without leave of the court, C filed 38 pages of additional intended grounds of appeal (“2^nd Grounds”). Later, again without leave of the court, C lodged 92 pages of intended grounds of appeal dated 18 May 2019 (“3^rd Grounds”) and 8 pages of intended grounds of appeal dated 24 May 2019 (“4^th Grounds”). In short, P filed/lodged over 100 pages of intended grounds of appeal.

7.  At the adjourned hearing of the Leave Application on 28 May 2019 (“Leave Hearing”), C appeared in person. I (a) granted leave for C to withdraw the 2^nd Grounds, and (b) directed him to file the 3^rd and 4^th Grounds as his intended additional grounds of appeal. On the same day, C filed his affirmation exhibiting the 3^rd and 4^th Grounds as exhibits A and B thereto.

8.  At the Leave Hearing, C submitted he had (at least) an arguable case that the DPO had committed fundamental errors of law and had failed to discharge her statutory duty to investigate in a material way, so leave to appeal against the DPO Judgment ought to be granted. After hearing from C, I reserved decision on the Leave Application. On 23 December 2019, I handed down decision on the Leave Application (“Leave Decision”), and granted the following order:

“1. [C’s Leave Application] be granted on the following grounds:

(a) the intended grounds of appeal set out in the [Leave Application] and the appendix thereto …… [ie the 1^st Grounds];

(b) the intended grounds of appeal dated 18 May 2019 annexed as Exhibit A to the Affirmation of [C] filed on 28 May 2019 …… [ie the 3^rd Grounds];

(c) the intended grounds of appeal dated 24 May 2019 annexed as Exhibit B to the Affirmation of [C] filed on 28 May 2019 [ie the 4^th Grounds].

2. Costs of the [Leave Application] (and all costs reserved, if any) be costs in the cause of the appeal.”

9.  On 24 December 2019, C filed his Notice of Originating Motion (“NOM”) that annexed the 1^st Grounds, the 3^rd Grounds, the 4^th Grounds and the Claim Form, and that sought the following reliefs: (a) claim for damages set out in the Claim Form, and (b) claim for reliefs, awards and orders prayed for in paragraphs (i)-(x) and (a)-(d) at pages 87-92 of the 3^rd Grounds.

10.  In December 2019, C applied for legal aid.^[10] On 17 January 2020, Henry Yu & Associates filed Notice to Act on behalf of D. On 30 March 2020, C was granted legal aid. The DLA assigned V Hau & Chow as C’s assigned solicitors,^[11] and further assigned Mr Ng as his assigned counsel.^[12] On 6 May 2020, Clyde & Co filed Notice of Change of Solicitors on behalf of D.

11.  Given the prolixity of 1^st, 3^rd and 4^th Grounds, C’s appeal against the DPO Judgment cried out for needed case management to facilitate effective hearing of the NOM. As this court said in paragraph 22 of the Leave Decision, in over 100 pages of intended grounds of appeal, C raised myriad challenges to the DPO Judgment and the DPO Reasons, but those grounds “were not easy to understand, and C did not help himself by making convoluted, rambling and wide-ranging accusations”. Since C was granted legal aid and thereby had legal representation, it was only appropriate for C to distil and refine his prolix grounds of appeal, and set out (as was usual) succinct perfected grounds of appeal that he would rely on at the hearing of the NOM (“Perfected Grounds”), especially when his appeal against the DPO Judgment was, after all, only on point of law.

12.  So at a hearing on 9 June 2020, I granted inter alia the following case management directions (“9/6/20 Directions”):

(a)	the substantive hearing of the NOM with half day reserved (“NOM Hearing”) be adjourned to a date to be fixed before this court in consultation with counsel’s diaries;
(b)	the parties’ respective written submissions for the NOM Hearing shall be divided into 2 stages:
	(i)	the Stage I written submissions shall set out succinct grounds of appeal distilled from the 1st, 3rd and 4th Grounds with cross-references to the pleadings, documents, transcripts, judgment and/or other evidence before the Tribunal in the LT Action that C would rely on at the NOM Hearing (ie the Perfected Grounds);
	(ii)	the Stage II written submissions shall be the parties’ written submissions for the purpose of the NOM Hearing;
(c)	for the Stage I written submissions for the NOM Hearing,
	(i)	C and D shall on or before 14 August 2020 agree on the indices of the hearing bundle for the NOM Hearing (“Hearing Bundle”);
	(ii)	C shall on or before 11 September 2020 lodge with the court and serve on D his Stage I written submissions (ie the Perfected Grounds) (see (b)(i) above, “C’s I Subs”);
	(iii)	D shall on or before 30 September 2020 lodge with the court and serve on C its Stage I written submissions to identify any disagreement with the grounds summarised by C in his Stage I written submissions (ie the Perfected Grounds) (“D’s I Subs”);
(d)	not later than 21 days before the NOM Hearing, C shall lodge/serve the Hearing Bundle;
(e)	not later than 14 days before the NOM Hearing, C shall lodge with the court and serve on D inter alia his Stage II written submissions (see (b)(ii) above, “C’s II Subs”) and list of authorities;
(f)	not later than 7 days before the NOM Hearing, D shall lodge with the court and serve on C inter alia its Stage II written submissions (see (b)(ii) above, “D’s II Subs”) and list of authorities.

13.  As C was given a further opportunity under the 9/6/20 Directions to formulate his Perfected Grounds by way of C’s I Subs (see paragraph 12(c)(ii) above), the following 4 matters were of note and were explained to the parties at the hearing on 9 June 2020:

(a)	The Perfected Grounds in C’s I Subs would be the grounds of appeal that C would rely on at the NOM Hearing, and such Perfected Grounds set the parameters for C’s submissions for the NOM Hearing (including C’s II Subs and oral submissions at such hearing). This was important as fairness required that D should know what C would truly rely on out of more than 100 pages of the 1st, 3rd and/or 4th Grounds for his appeal on point of law, so D could properly focus its addresses on those particular grounds and not waste unnecessary efforts and/or costs.
(b)	The Perfected Grounds in C’s I Subs must be drawn from the 1st, 3rd and/or 4th Grounds because by the Leave Decision this court did not grant leave for C to appeal against the DPO Judgment on any other extraneous grounds. This explained why the 9/6/20 Directions required C to identify how the Perfected Grounds were distilled from the 1st, 3rd and/or 4th Grounds with cross-references to the pleadings, documents, transcripts, judgment and/or other evidence before the Tribunal.
(c)	Although D did not appeal against the DPO Judgment, D was allowed under the 9/6/20 Directions to lodge D’s I Subs to succinctly set out any disagreement with the Perfected Grounds in C’s I Subs in the sense, say, that any Perfected Ground was outside the scope and ambit of the 1st, 2nd and/or 3rd Grounds, or outside what had transpired in terms of pleadings, evidence and/or submissions at the Trial of the LT Action. This added dimension arose out of (i) the further opportunity given for C to formulate his Perfected Grounds out of the 1st, 3rd and/or 4th Grounds by way of C’s I Subs, and (ii) the expectation that early eliciting of D’s stance on such preliminary matters would facilitate both parties to better understand where they stood for the NOM Hearing and to be more focused in their preparation of C’s/D’s II Subs.
(d)	As evident from (b)-(c) above, C’s/D’s I Subs were to set the parameters of C’s appeal (ie the Perfected Grounds) and D’s preliminary challenge thereto to be followed by C’s and D’s substantive submissions in C’s/D’s II Subs in support and in opposition of the appeal against the DPO Judgment within those parameters and those objections.

14.  On 14 September 2020, this court granted extension of time for C to lodge/serve C’s I Subs with consequential case management directions. On 9 October 2020, C lodged C’s I Subs. On 6 November 2020, D lodged D’s I Subs. In D’s I Subs, Mr Chain (and Mr T Ng with him), counsel for D, complained that C’s I Subs failed to clearly identify the source where each Perfected Ground that C relied on was argued in the LT Action (especially as C filed 14 pleadings/statements in such proceedings). In my view, there was some force in such complaint,^[13] but D did what it could and lodged D’s I Subs, and reserved its right to contend the Perfected Ground(s) in C’s I Subs was/were not raised/ pleaded in the proceedings below.

15.  A further matter of concern arose from paragraph 4 of C’s I Subs which stated as follows:

“The email from [Captain Ronal Lim (“Lim”), D’s then Chief Operating Officer (“COO”)] to C dated 13/1/2009 [“13/1/09 Email”] clearly shows that had the proper investigation been done, the result of the further investigation would have made a difference to the outcome. Notably, in the [13/1/09 Email], the COO confirmed with C that the [Conditions of Service, “COS”] and Clause 4 of the EC did not apply to C, that C’s conditions of service were those set out therein and that C’s management position with D could only be terminated upon “mutual agreement”.”

The 13/1/09 Email was not evidence adduced at the Trial and was not previously disclosed by C to D and/or to the Tribunal in the LT Action. Footnote 6 of C’s I Subs stated inter alia that “…… C has taken out or will take out a Summons for leave to admit the 2 Emails [ie the 13/1/09 Email which was said to be a reply to an earlier email dated 10 January 2009 by C (“10/1/09 Email”) (collectively “2 Emails”)] for the purpose of this appeal. As the purpose of admitting the 2 Emails is to show that the DPO had failed to properly investigate the said issues, the 2 Emails ought to be admitted for that purpose ……” However, no such summons had been or was taken out when C lodged C’s I Subs.

16.  2 months later, on 10 December 2020, I granted leave for C to file the Summons referred to in the paragraph below, and to have such Summons returnable at the same time as the NOM Hearing.

17.  A further 2 months later, on 8 February 2021, C filed a summons to seek inter alia the following reliefs (“Summons”):

(a)	leave be granted for C to adduce the 2 Emails (copies of which were annexed to the Summons) for the limited purpose of showing that had proper investigation been done by the DPO, the result of the outcome of C’s claim in the LT Action would have been different;
(b)	costs of the application be costs in the costs of the appeal.

18.  On 27 August 2021, C lodged C’s II Subs. On 1 September 2021, D lodged D’s II Subs. In C’s II Subs, Mr Ng claimed D’s I Subs failed to answer C’s submissions in C’s I Subs that the DPO failed to properly investigate the issues of (a) whether the 2009 version of the COS (“2009 COS”)^[14] formed part of the EC, (b) whether the EC had been varied and extended to 3 March 2016, and (c) whether the renewed EC could be terminated by 3 months’ notice or payment in lieu thereof because they were unanswerable. But, in my view, such contention reflected misunderstanding over the purpose of D’s I Subs as explained in paragraph 13(c)-(d) above, and D’s I Subs were not meant to set out the fullness of D’s substantive “answer” to C’s Perfected Grounds.

19.  At C’s request, this court by written directions dated 20 January 2021 extended the hearing time for the NOM Hearing from half day to one day. Such hearing was returnable before this court on 10 September 2021. But 3 days before the NOM Hearing (ie on 7 September 2021), C filed his affirmation in support of the Summons and allegedly in response to D’s II Subs (“C’s Aff”). D objected to the admissibility of C’s Aff on the basis of its late introduction, C’s unjustified delay and consequential prejudice to D. After hearing from Mr Ng and Mr Chain at the NOM Hearing, I refused to grant leave for C to rely on C’s Aff for the purpose of the Summons and/or for the NOM Hearing, and I also reserved the question of costs.

20.  At the outset, in light of the purposes of C’s/D’s I Subs explained in paragraph 13(b)-(d) above, at the NOM Hearing, Mr Ng was asked to identify in his oral submissions the primary sources from the 1^st, 3^rd and/or 4^th Grounds for C’s Perfected Grounds in C’s I Subs. These clarifications were necessary to facilitate this court in deciding whether the Perfected Grounds fell within the scope and ambit of the leave granted for C to appeal against the DPO Judgment.

21.  D had further concerns in light of the purposes of C’s/D’s I and II Subs as explained in paragraph 13(a) and (d) above. As Mr Chain correctly noted in paragraph 2 of D’s II Subs, this court was essentially concerned with the Perfected Grounds in C’s I Subs for C’s appeal against the DPO Judgment at the NOM Hearing. But Mr Chain complained that C’s position on his appeal had evolved with new matters raised even though he had been given opportunities to further frame his appeal by lodging C’s I Subs and to set out his submissions by lodging C’s II Subs, which new matters led to chaos since C was in fact not entitled to pursue those new matters at the NOM Hearing. This would be discussed in greater detail below, but suffice to give 2 examples here to illustrate Mr Chain’s contentions:

(a)	In paragraph 35 of D’s II Subs, Mr Chain argued that C’s assertions in paragraphs 38-40 of C’s II Subs (ie that the DPO failed to properly investigate C’s repeated claims that D as employer had the contractual obligation to act in good faith) was not found in C’s I Subs.
(b)	At the NOM Hearing, Mr Chain complained that C’s appeal had metamorphosed with new contentions emerging for the 1st time in Mr Ng’s oral submissions, eg the DPO failed to properly investigate the pre-contractual collateral contract evident from the 23/1/08 Email (referred to in paragraph 134 below).

22.  At the NOM Hearing, the 2 Emails were received on de bene esse basis with their admissibility reserved for determination in this Judgment. Mr Ng was asked to identify in the course of his oral submissions which Perfected Ground(s) in C’s I Subs and/or which aspect(s) of C’s II Subs and his oral submissions were reliant or not reliant on the 2 Emails.

23.  Before I turn to consider C’s appeal under the NOM, it is necessary to start with the parties’ respective case and the DPO Judgment/Reasons. Since neither Mr Ng nor Mr Chain had any quarrel with the summary in the Leave Decision, I shall largely draw from the same in the account below. Further, for convenience, references in this Judgment to C’s documents and D’s documents in the LT Action are respectively identified as “C-xx” and “D-xx”, and references in this Judgment to the tabs/pages of the Hearing Bundle are identified, say, as “Axx/xx” and “Exx/xx”.

II.  PARTIES’ RESPECTIVE CASE

24.  In the LT Action, C made the following arguments, and claimed against D for damages set out in the Claim Form (see paragraph 2 above)^[15] for its breach of the Agreement referred to in (a) below:

(a)	C argued that although he received from D the Payment Letter and “final” payment (see paragraph 1 above), his employment with D had not ceased because there was an agreement by D’s then General Manager, Training (“GMT”) Captain Richard Stewart (“Stewart”) that D “would give [C] line flying and promotional opportunities to age 65 and instructional and/or managerial duties past age 65” (“Agreement”),[16] which was evidenced by various emails and letters in August/November 2010[17] and bolstered by D’s email dated 28 March 2011 to C that enquired about renewal of his working visa.[18]
(b)	C claimed his EC was not subject to any COS as (i) D’s 2008 version of the COS (“2008 COS”)[19] had been replaced and had become obsolete, and (ii) he refused to sign any subsequent versions of the COS;
(c)	C made wide-ranging allegations against D of discrimination as well as unlawful, unfair, unjust, unreasonable, wrongful, malicious and fraudulent actions, and further claimed he was led by D’s conduct to believe he would receive the same or better treatment as other employees.[20]

25.  At the Trial, D conceded that (a) the EC, which was the only agreement between C and D, should have expired by effluxion of time in November 2012,^[21] (b) the EC was prematurely terminated, and (c) pursuant to clause 4 of the EC D had to give 3 months’ notice of termination or payment of 3 months’ salary in lieu of notice,^[22] but D denied any enforceable Agreement to renew C’s EC.^[23] D claimed it had full discretion whether or not to renew the EC, and any such renewal would have to (i) comply with the renewal procedure in the COS (ie the 2008 COS and subsequent versions thereof^[24]) provided in the EC,^[25] (ii) involve D’s 3 departments (ie the Human Resources Department, the Finance Department and the Senior Management) so that any pilot employment contract would only be renewed if the criteria of these 3 departments were met,^[26] and (iii) there was no mutual agreement on the terms and conditions in writing and signed by C and D as required under the COS.^[27] D alternatively argued that even if C’s EC had been renewed, it would have been renewed on the same terms and conditions of service in the EC^[28] in which case clause 4 of the EC would have allowed D to terminate the renewed employment contract by giving C 3 months’ notice or 3 months’ salary in lieu of notice.^[29]

III.  DPO JUDGMENT/REASONS

26.  As to whether or not (a) C and D came to the Agreement and/or (b) an effective renewal notice had been given to C pursuant to clause 3 of the EC,^[30] ie whether there was any Agreement that had the effect of renewing the EC,^[31] the DPO noted C relied on (i) 2 oral agreements made with D’s then COO Lim (whom C claimed had the highest authority within D to confirm renewal of his EC^[32]) and D’s then GMT Stewart as evidenced by the Contract Renewal Documents in August and November 2010 referred to in footnote 17 above,^[33] and (ii) the Contract Renewal Documents which amounted to effective renewal notice under clause 3 of the EC.^[34]

27.  The DPO rejected C’s contentions,^[35] and found as follows:

(a)	the 2008 COS and the subsequent versions thereof (which included rules in relation to any renewal of the EC) were duly incorporated by clause 12 of the EC[36] as part of the contractual framework binding on C and D that underpinned their relationship;[37]
(b)	C signed the EC that stated the COS formed part of the contract (see (a) above), and on the same date as C signed the EC he also signed and acknowledged a copy of the COS to the effect he would abide by all rules and regulations stated therein, so there was no mistake that would have vitiated the binding effect of the COS on C;[38]
(c)	clause 12 of the EC clearly provided that “[additional] rules, regulations, rights, benefits for protection from time to time promulgated under the [COS] also formed part of this contract ……”,[39] which meant the 2008 COS and its subsequent versions applied to C irrespective whether he signed and/or acknowledged the subsequent versions;[40]
(d)	there was no merit to C’s argument that he only acknowledged receipt of the “08 January 2008” version and not the “01 January 2008” version of the 2008 COS when (i) the DPO accepted the reference to “08” rather than “01” was a typographical error, and (ii) clause 12 of the EC specifically referred to the COS published on “01 January 2008”, which COS clearly formed part of the contract between C and D;[41]
(e)	as at March 2011,[42] the contractual relationship between C and D (including performance of the EC such as contract renewal) continued to be governed by the latest version of the COS, ie the 2009 COS;[43]
(f)	although C argued D had given an effective renewal notice to him,[44] clause 3 of the EC[45] had to be read in conjunction with clause 2.2.4 (expiration of contractual term) of the 2009 COS[46],[47] which clauses were not discrepant[48] and were in fact consistent with each other in reserving the right/discretion on contract renewal unto D and in requiring any renewal to be in writing and signed before expiry of the employment contract[49],[50] but (as C accepted when he gave evidence) there was no document that complied with clause 2.2.4 of the 2009 COS to evidence any contract renewal;[51]
(g)	fair reading and reasonable construction of the Contract Renewal Documents that C relied on (see footnote 17 above) did not displace or override the formalities/procedures prescribed in the EC and the 2009 COS,[52] and in fact such emails/letters suggested that contract renewal would be a prospective matter to be handled by D (if at all);[53]
(h)	the Contract Renewal Documents in 2010 could/did not amount to any contract renewal that complied with the relevant contractual terms/procedures[54] in respect of notice to employee regarding contract renewal to be given by D “one month prior to the Expiry Date” (ie November 2012);[55]
(i)	the Contract Renewal Documents in 2010 that C relied on were at best a recommendation by Lim/Stewart, which had yet to be considered/formalised in accordance with the necessary procedures (eg yet to be approved through the VPN approval system);[56]
(j)	a reasonable person in C’s position could not have thought there was any agreement for contract renewal, especially when C had substantial experience in commercial aviation and also had law degrees.[57]

28.  The DPO noted the normal retirement age was 60 years,^[58] and D had absolute discretion whether or not to extend such retirement age. The email by D’s Becky Li dated 28 January 2011 stated the non-renewal was due to contract expiry or because of retirement age.^[59] In fact, C reached 60 years in 2010, so the DPO found no evidence of “discrimination, unlawful, unfair unjust, unreasonable, wrongful, malicious, fraudulent (deception) actions” on D’s part.^[60]

29.  The DPO also disagreed Lim had absolute right of recruitment which even the Chairman^[61] and/or Vice President Sun Jianfeng (“Sun”) could not intervene.^[62] The DPO found C failed to rebut the clear evidence of the contemporaneous VPN approval form by D’s then (Acting) Director of Flight Operation (“DFO”) Captain Chow Shoon Yue (“Chow”) (but I note he was referred to variously as DFO or Acting DFO - see para 22 of C’s revised statement of claim dated 31 May 2017 at C45(19) and B9/270),^[63] and from the relevant procedures concerning such VPN that showed Lim did not have such absolute right.^[64]

30.  The DPO held that C’s reliance on the email dated 18 May 2011 made after termination of his employment^[65] was at best an expression of Lim’s intention to put forward a new contract renewal policy, but up till 2011 the normal retirement age was still 60 years under the 2011 COS (as referred to in footnote 24 above),^[66] and in any event Sun stated in his email dated 18 May 2011 that the original contract would have to be followed, which meant the EC and the COS must prevail.^[67]

31.  The DPO took note that C lodged further written submissions after the Trial, and that D responded thereto with written supplemental submissions. The DPO found it undesirable and inappropriate for C to submit supplemental submissions after conclusion of the Trial particularly given the procedural history of the LT Action, and in any event the DPO found that for the reasons set out in D’s supplemental submissions C’s further submissions did not add further to his case.^[68]

32.  On the aforesaid analysis and reasons, the DPO rejected C’s case, but in view of D’s concession in paragraph 25 above (ie the natural expiry date of the EC should be November 2012), D was liable to pay C 3 months’ salary in lieu of notice for termination after commencement of the applicable conversion course pursuant to clause 4 of the EC.^[69]

33.  Given her aforesaid conclusion, the DPO found it unnecessary to deal with the further issue whether, if there were Agreement to renew the EC or if D had given effective notice to C as stipulated in clause 3 of the EC, D had breached the renewed employment contract, and if so, what would have been the damages for such breach.^[70] But even if the EC had been renewed as C alleged (which the DPO disagreed), the DPO would have found the alleged renewed employment contract to have been renewed “with the same remuneration, benefit, terms and conditions of service” as per the email relied upon by C himself (see footnote 28 above), in which case clause 4 of the EC would have enabled D to terminate such alleged renewed employment contract by giving C 3 months’ notice or paying C 3 months’ salary in lieu of notice, so the result would have been the same.^[71]

34.  Although costs should normally follow event, the DPO noted C did not succeed on all of his claims, and she found C’s claim speculative and without basis whilst D’s concession was reasonable, so she exercised her discretion not to make any cost order.^[72]

IV.  LEAVE DECISION

35.  In the Leave Decision, I noted upon a quick review of the 1^st, 3^rd and 4^th Grounds that they ran to over 100 pages. Whilst it appeared they ultimately attacked the findings made by the DPO, some aspects of such attack appeared to be a criticism of how the DPO approached C’s claim and the evidence in coming to her factual conclusions. Although an appellate court may not reverse/vary any determination made by the Tribunal on question of fact or receive further evidence on appeal, there was, at that stage, arguable basis to contend the DPO’s findings were arguably suspect (and hence arguably liable to be impugned) in the senses set out in paragraph 9 of the Leave Decision.^[73] Further, the DPO Judgment/Reasons largely turned on construction of the EC, the COS and/or the emails/letters P relied on, and the vitality of such construction would be a matter of mixed fact and law, so interpretation in the relevant factual context as found by the DPO was also arguably amenable to appeal.

36.  It also appeared that C (a) contended inter alia that the DPO failed to investigate, address and deal with or sufficiently investigate, address and deal with C’s claims of discrimination, victimisation, abuse of process, malice or gross negligence etc against him that allegedly underlied D’s conduct in terminating the employment relationship, (b) alleged that the DPO did not permit or sufficiently permit him to cross-examine witnesses on such matters on the basis that they were irrelevant, (c) claimed D terminated his employment prematurely without 3-months’ notice, 3-months’ salary in lieu of notice and/or just cause which would be similar or tantamount to summary dismissal, and (d) disputed the incorporation of the COS (particularly the post-2008 versions of the COS) as part of the contractual framework between C and D. Although such complaints would go to the DPO’s findings, they arguably amounted to challenges in the senses as explained in footnote 73 above.

37.  Nevertheless, when this court granted leave for C to appeal against the DPO Judgment on the 1^st, 3^rd and 4^th Grounds on the basis that they at least arguably met the threshold test for leave to appeal, I made clear it was inappropriate at that stage to canvass all the intended grounds that C put forward, which voluminous grounds could not be said to facilitate easy understanding. By the Leave Decision, this court also made clear that since no leave was granted for any further, additional and/or varied grounds of appeal, C could not rely on any ground of appeal extraneous to the 1^st, 3^rd and 4^th Grounds in the NOM for appeal against the DPO Judgment.

V.  LEGAL PRINCIPLES

38.  I have summarised the relevant legal principles in relation to appeals against awards, orders or determinations of the Tribunal in several of my earlier judgments, which I rely but do not repeat here.

(a)  Nature of appeal

39.  General  A party’s right to appeal against an award, order or determination by the Tribunal is limited to questions involving point of law or excess of jurisdiction (see section 32(1) of the LTO). On such appeal, the CFI may draw any inference of fact, but may not (a) reverse or vary any determination made by the Tribunal on questions of fact or (b) receive any further evidence (see section 35(2) of the LTO). The relevant legal principles are trite and well-established, and there was little disagreement between Mr Ng and Mr Chain on the applicable legal principles for appeals on errors of law from decisions of the Tribunal.

40.  New point on appeal not taken below  Mr Chain submitted that it is not open to an appellant to take a point for the first time on an appeal from the Tribunal which was not taken at the Tribunal below. Mr Chain cited Winsome Watch-Case Manufactory Ltd v Chan Hau Chung^[74] in support of such proposition. In that case, the employee appealed against a decision of the presiding officer that awarded inter alia a severance payment in favour of the employee. The employer asserted on appeal inter alia that the claim was out of time. The learned judge considered the relevant law on this point, and concluded that a sensible reading of the relevant provisions in the LTO supported the presiding officer’s conclusion, which the learned judge considered to be right in law and well founded. But the learned judge went on to say there was force in the employee’s contention that “this is a point which it is really too late to take on appeal at all” (paragraph 15). That case involved a special limitation provision which expressly gave power to extend time only to the Commissioner for Labour, so it was imperative that “a limitation point should be taken at the proper time, even though this is a Tribunal before whom the parties may well be expected to appear in person” otherwise opportunity for asking the Commissioner for Labour to extend time (if there were a need for it or if there were prospective merit in such application) would have been lost. Hence, “if a point like this is to be taken it must be taken in the court below”. The learned judge added he strongly suspected that “in the ordinary course the Court of Appeal (“CA”) would refuse to hear a limitation argument which has neither been pleaded nor raised in the court below. That position is a fortiori because in many limitation periods the court has no power, and nobody has any power, to extend the period at all. In those circumstances and for these reasons, in my opinion, this appeal fails and must be dismissed” (paragraph 15).

41.  It may be suggested that Winsome Watch-Case Manufactory Ltd was a special case in the sense that the limitation point concerned a special limitation provision that gave power to the Commissioner for Labour to extend time. But on proper consideration, the foundational imperative in an appellate court refusing to entertain a new point not raised in the first instance proceedings is fairness, ie the respondent will be unfairly surprised by a new point taken on appeal. It is this foundational imperative of fairness that underlied the Flywin doctrine^[75] as a discretionary principle.^[76] The Appeal Committee of the Court of Final Appeal in Secretary for Justice v Timothy Wynn Owen KC & anor^[77] summarised and explained the first aspect of the Flywin doctrine as follows:

“21. The first aspect has been referred to as the “state of the evidence” bar. As the Court explained:

“... where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.”^[78]

22. That consideration therefore arises where the new point involves factual issues which have not been explored below because, the matter not having been raised, potentially relevant evidence has not been adduced and the issue has not been addressed in argument. To allow such a new point to be taken on appeal is obviously likely to entail unfairness to the other party.

23. Such issues of fairness are not confined to the absence of relevant evidence. They also arise where failure to take the point may affect the way the case was conducted, the arguments advanced and the course taken by the proceedings in the courts below. As was explained in Lehmanbrown Ltd v Union Trade Holdings Inc:

“... it is ... clearly and firmly established that new points which are fact sensitive or otherwise affect the course of evidence or conduct of the case at the hearing below should not be allowed. Though this principle is usually applied in situations where the new points necessitate further evidence to be adduced, it is not confined to such scenarios. Very often, the raising of new point by one party may lead to the other party raising counter arguments and the consideration of such counter arguments may involve factual assessment in a different light from that undertaken by the court below. Sometimes, it may involve a different weighing of factors in the exercise of discretion. Alternatively, the other party may embark on a different course of forensic conduct if the new point were taken earlier. The appellate court, in considering whether the new point would be entertained, is entitled to take these matters into account in order to avoid unfairness to the other party.”^[79]

24. In such cases, failure to take the point below has an impact on the fairness of the proceedings. It also hampers the Court’s ability to adjudicate effectively on the appeal.”

42.  As explained in Timothy Wynn Owen KC & anor, whilst Flywin Co Ltd “refers to new points taken at a civil trial, it is a principle of general application”^[80] (paragraph 20 and footnote 32). In my view, these principles apply also to appeals against awards, orders or determinations by the Tribunal, which appeals are on point of law and where the CFI may not reverse or vary any finding of fact by the Tribunal or receive any further evidence (see paragraph 39 above). Even though the presiding officer has a duty to investigate as explained in Part V(c) below, such duty, which is not absolute, does not require the presiding officer to take over the role of an advocate for a litigant. When a litigant’s pleadings/statements contain sufficient and viable claims or defences, the duty to investigate into any matter “which [the Tribunal] may consider relevant to a claim” does not require the presiding officer to ferret around for new potential points of claim or points of defence that have not been raised by the litigants.^[81] To suggest otherwise would be to allow litigants to circumvent the aforesaid restriction on taking new points on appeal by blaming the presiding officer for not looking for new points that they themselves have not seen fit to raise.

43.  This is borne out by 2 decisions of the CA in Sun Min v Hong Kong Ming Wah Shipping Co Ltd, and by the Appeal Committee of the Court of Final Appeal (“CFA”) in Hong Kong Ming Wah Shipping Co Ltd v Sun Min. In that case, X was employed by E (Hong Kong subsidiary of a Mainland China corporation M). X became pregnant and gave notice of this to E. X then received a transfer order from E for her to move back to Mainland China to work for another subsidiary of M. E maintained it was unaware of X’s pregnancy when the decision to transfer was made. X was unwilling to accept this transfer, gave written refusal to E, and eventually did not report for duty in Mainland China. E regarded her as having left, and dismissed her for disobedience of a lawful and reasonable order. X sued E in the Tribunal claiming that, contrary to section 15(1)(a) of the Employment Ordinance Cap 57 (“EO”), her employment had been terminated after she gave notice of pregnancy by the transfer order. The presiding officer found the transfer did not amount to a termination of X’s contract of employment, and dismissed the claim. On appeal by X to the CFI, the order was set aside by DHCJ Poon (as he then was).^[82] Leave to appeal to the CA was given by Yuen JA on the basis of a point of law of general public importance. Consequently, E appealed against the judgment of DHCJ Poon (as he then was) arguing that (a) the contract of employment was between X and M and not with E, (b) if there was a relevant contract of employment between X and E, the proposed transfer of X did not constitute a determination of X’s employment, and (c) E was entitled to summarily dismiss X for wilfully disobeying E’s lawful and reasonable order by refusing the transfer. E also sought to adduce additional evidence to make out a case that the contract of employment was not made between E and X, and on the basis of the alleged new evidence, E sought a new trial. The CA dismissed E’s appeal and its application to adduce fresh evidence.^[83] E then applied for leave to appeal to the CFA, claiming that such intended appeal raised questions of great general public importance. The CA refused leave and dismissed the relevant summons as well as an amended summons for leave to file/serve an amended notice of motion.^[84] E renewed its application to the CFA for leave to appeal arguing inter alia there was a point of great and general public importance, ie (d) section 15(1)(a) of the EO did not apply where a transfer to another company in M’s Mainland China group was envisaged. The Appeal Committee dismissed the application as the grounds raised by E were not reasonably arguable.^[85]

44.  When the matter came before the CA, Tang JA (as he then was) held it was not open to E to argue that X’s employment had been terminated by E under section 9 of the EO (see paragraph 43(c) above) as it was not E’s case before the Tribunal and/or before the CFI (page 385).

45.  When the matter went again before the CA for leave to appeal to the CFA, E tried to raise a further question as to whether section 23(2) of the LTO which prohibited legal representation for a party at the Tribunal infringed article 35 of the Basic Law. Tang JA (as he then was) said “[this] point was not raised before the judge nor before us. We do not believe that this is a point which ought to be permitted to be raised for the first time in the [CFA]” (paragraph 20).

46.  On its application to the CFA, E argued that the transfer order was not a termination as section 15(1)(a) of the EO was not engaged (see paragraph 43(d) above). Ribeiro PJ held “…… it is a point not raised either before the magistrate [ie the presiding officer of the Tribunal] or the judge at first instance. A question obviously arises as to whether it is open to [E] to raise it now as a possible basis for leave to appeal” (page 81). It transpired that E’s new argument relied on section 17I of the Immigration Ordinance Cap 115 (“IO”) for E claimed the transfer order was a lawful and reasonable order made with a view to comply with section 17I of the IO (page 82). Ribeiro PJ held as follows (pages 82-83):

“26. This is an argument with many premises and facets that have never been explored in the Tribunal or the courts below either on the facts or as a matter of law …… Whether and in what circumstances an extension to accommodate a pregnancy, particularly in the light of the alleged conflict of statutory duties, was not explored in the Tribunal and is a matter on which [X] may well have wished to adduce evidence if it had properly been raised. Section 35(2)(ii) of the [LTO] prohibits the reception of new evidence by the courts on appeal. And as we held in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, a decision repeatedly applied [see extract in paragraph 41 above]……

27. As a matter of law, the existence, if any, of the alleged conflict of duties under the two Ordinances [ie the EO and the IO] has never been argued and is a matter on which the Court would have no assistance from judgments of the intermediate appeal courts. …… This is not an issue which arises now for decision but illustrates why we are not prepared to permit the termination point to be raised for the first time in the Court.”

47.  Appeal on point not pleaded below  Mr Chain next submitted it is not open for an appellant on an appeal against an award, order or determination of the Tribunal to take a point on appeal which has not been pleaded in the court below. Mr Chain cited Nice & Well Ltd v Fu Mee Yuk Shirley^[86] in which the appellant took 2 points that had not been pleaded. It was held that since the points had not been pleaded, so it was not open to the appellant on appeal. In my view, whilst hearings at the Tribunal are conducted in an informal manner (see section 20(1) of the LTO) without the procedural strictness of pleadings in civil cases (see Order 18 of the Rules of the High Court (“RHC”)) and points may arise as a result of the presiding officer carrying out his duty to investigate matter(s) which he may consider relevant to the claim, it is a question of degree. Where the parties have extensively canvassed their respective case in detailed pleadings, statements and/or submissions before the presiding officer at trial, the appellant may find it difficult to raise a new point that was not pleaded or argued in the proceedings at the Tribunal.

48.  It is perhaps useful to refer to Cheng Loon Yin v Secretary for Justice & anor.^[87] In that case, a hawker control officer was assaulted in the course of his duties. The trial judge found his assailant liable, but dismissed his claim against his employer. The officer claimed his employer should have provided him with an alarm to summons help and to deter the assailant, but the trial judge held it was difficult to see how the alarm would add to the walkie-talkie in summoning assistance or add to the safety of the officer. On appeal, the officer submitted he could have triggered the alarm before the 1^st blow or between the 1^st and 2^nd blows, thereby lessening his injuries, but (a) whilst the failure to provide an alarm had been pleaded, it was not pleaded how the failure to provide the alarm would have contributed or made any difference to the incident that resulted in the officer’s injuries or the seriousness of those injuries (pages 878 and 884), and (b) this was not argued before the trial judge (pages 875 and 878). The trial judge drew no inference that the officer would have used the alarm had it been available because it was not pleaded or argued before him on such basis, and the CA could not draw such inference on the facts as found by the trial judge. Tang JA (as he then was) held that “[moreover], this is analogous to a new point taken on appeal which is fact sensitive and the facts would have been more thoroughly investigated had the point been taken below. So even if on the facts such an inference might have been drawn, I would not do so. The Judge who has heard the evidence …… was best placed to decide the point, had the point been taken. As I said, if it had been, no doubt the evidence would have been carefully explored. [Counsel for the appellant] has confirmed that no evidence was led from the plaintiff on the issue. Instead …… he relied on the proposition that causation was presumed” (page 878).

49.  Although Cheng Loon Yin did not concern appeal from any award, order or determination by the Tribunal, it again emphasised the foundational imperative of fairness as explained in the discussions above, and suggested that taking a point that had not been pleaded on appeal was akin to taking a new point on appeal, and I reiterate paragraphs 40-46 above.

50.  But Sun Min concerned appeal against the judgment of DHCJ Poon (as he then was) on appeal from the judgment of the presiding officer of the Tribunal. In that case, E argued before the CA there was no contract between E and X (see paragraph 43(a) above), but this was not a point that was raised in the statement of X at the Tribunal. Even if that had been raised as one of the defences in the hearing before the presiding officer, that defence was not pursued, and instead E argued that X had not been dismissed by E and that the transfer to Mainland China was an internal transfer in accordance with the employment contract (page 385). Although E argued that having regard to the inquisitorial nature of the proceedings in the Tribunal the presiding officer ought to have enquired into this question, Tang JA (as he then was) reminded as follows (page 386):

“19. The power or duty to investigate must be treated with common sense. The extent of investigation must depend on all the circumstances …… [the Tribunal] was meant to provide a summary and speedy resolution to claims within the [LTO]. In the circumstances of this case, we do not agree that the Presiding Officer had failed to perform his duty when he did not investigate a point which had been abandoned or not pursued by [E].

20. There was nothing in the evidence before the Presiding Officer which should have prompted him to investigate further into this issue. The fact that the evidence before the Presiding Officer was insufficient to make out a case on this point is reinforced by the fact [X] sought leave to adduce additional evidence. [Senior counsel for X] accepted that such additional evidence was required before he could make out a case that the contract of employment was not made between [E] and [X].” (my emphasis)

(b)  Error of law and not fact

51.  I reiterate my discussions of the relevant legal principles in (a) paragraphs 13-15 and 40 in my judgment in Chan Chi Ling Elwyn v Richfield Realty Limited,^[88] (b) paragraphs 10-16 in my judgment in Vermeerbergen Peter Alfred v Swisstribe Limited,^[89] and (c) paragraphs 44-46 of my judgment in Fung Tsun Tong v A Link Network (HK) Limited & anor.^[90] Analogous principles drawn from appeals against decisions in the Small Claims Tribunal are set out paragraphs 30-34 of my judgment in A Workshop Communications Ltd v Tam Heung Man.^[91]

52.  Apart from reiterating the legal principles discussed in the above-mentioned judgments, it is useful to draw attention to 2 matters. First, I repeat what I have said in Chan Chi Ling Elwyn as follows:

“103. I accept that findings of fact are generally immune from attack unless there is an error of law in that the findings were “perverse or irrational” or made “by reference to irrelevant factors or without regard to relevant factors”. I bear in mind that the first instance decision or finding has to be plainly wrong before this court can interfere and there is a generous ambit within which reasonable disagreement is possible. And it is not for me to prefer a different conclusion, to re-assess the weight of relevant evidence, to weigh witness credibility, or to see whether other inferences can plausibly be drawn.”

This point was also made by Mr Chain in D’s II Subs, ie an attack on factual findings made by the Tribunal can amount to an error of law only if its conclusion is one that no reasonable tribunal could have reached.^[92]

53.  Secondly, Order 55 rule 7(7) of the RHC provides that the CFI 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.^[93] Likewise, Mr Chain also submitted that even if it can be shown that a tribunal has erred on a point of law, if such error has no material bearing or impact on the outcome of the case, the appellate court should not order a retrial, citing in support of such principle my judgment on the analogous position on appeal from a decision of the Small Claims Tribunal in Yeung & Young Medicare Centre Ltd v潘贊生.^[94]

(c)  Duty to investigate

54.  As alluded to in paragraph 47 above, hearings at the Tribunal are conducted in an informal manner. The presiding officer may inter alia subpoena witnesses, order the production of any document, record, book of account or other exhibit and put to a party or witness such questions as he may think fit (section 20(2) of the LTO), and shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party (section 20(3) of the LTO).

55.  I reiterate my discussions of the relevant legal principles in (a) paragraphs 89-91 in my judgment in Chan Chi Ling Elwyn,(b) paragraphs 17-21 in my judgment in Vermeerbergen Peter Alfred,and (c) paragraphs 47-52 in my judgment in Fung Tsun Tong. Analogous principles drawn from appeals against decisions in the Small Claims Tribunal are set out paragraphs 35-42 of my judgment in A Workshop Communications Ltd. Mr Ng cited a number of other authorities on the broad principles as to the exercise of the duty to investigate by a presiding officer,^[95] which I have read, but they did not take the applicable legal principles any further than as set out in my previous judgments.

56.  However, a few matters deserved to be highlighted:

(a)	The statutory duty to investigate is not an absolute one. The relevant matter forming the subject matter of a complaint of failure to investigate must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice in that a fair and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. As Mr Chain submitted in D’s I Subs, the presiding officer’s duty is to conduct appropriate and reasonable investigation on a matter that had material bearing on his ruling or finding of fact, which is a question of degree[96] and/or a question of how the claim and defence have been framed[97] (see also paragraph 50 above).
(b)	The manner of investigation is a matter of discretion to be exercised by the presiding officer in view of the facts of the case before him, and regard can be taken as to the issues in dispute, the incontrovertible evidence before the Tribunal, and the material placed before the Tribunal by the parties after inquiry by the presiding officer. The presiding officer is obliged to remain neutral and impartial in carrying out his duty to investigate, and he should not play the role as advocate for one litigant.
(c)	A litigant bears primary responsibility in the preparation and procurement of evidence in support of his case, and a presiding officer (who has no duty to summon witnesses to fill the gaps in the evidence of a litigant) can still decide a case by reference to the burden of proof. The duty to investigate cannot replace a party’s right to cross-examine witnesses called by others and to challenge the case of others.[98]
(d)	Whilst a presiding officer has a duty to investigate, a complaint of failure to investigate should not be used as a guise in an attempt to challenge the presiding officer’s findings of fact, which is usually not permissible save in the senses explained in footnote 73 above.[99]

(d)  Adducing fresh evidence on appeal

57.  In Sun Min, E on appeal to the CA argued inter alia that the contract of employment was between X and M and not with E (see paragraph 43(a) above), and sought to adduce additional evidence to make out such case, and then on the basis of the fresh evidence, E sought a new trial. I have explained in paragraph 50 above that this was not a point raised in E’s pleadings/statements, and even if it had been raised at the hearing before the presiding officer, it was not pursued, so the presiding officer did not fail to investigate a point that had been abandoned or not pursued. The CA rejected E’s application to adduce additional evidence (pages 386-387):

(a)	First, there was no attempt to seek leave to adduce additional evidence before DHCJ Poon (as he then was). “If it was a point which was open to [E] to take on appeal from the [Tribunal], [E] ought to have taken it on appeal to the [CFI]. That had not been done” (page 386).
(b)	Secondly, section 35(2) of the LTO provided that the CFI may not receive further evidence. Tang JA (as he then was) said “[it] may be that if an appeal is on the ground that the Presiding Officer ought to have investigated into a matter, it is possible for evidence to be admitted to show that had the proper investigation been done, the result of further investigation would have made a difference to the outcome. Outside of this limited purpose, we do not believe further evidence can be received. Even treating the application on that basis, that not having been done before the Judge, we do not believe it is right to allow the defendant to do so on appeal to the [CA]” (my emphasis) (page 386).
(c)	Thirdly, there was no denial in E’s statement that there was a contract of employment between X and E. In fact, that was well supported by the evidence before the presiding officer. Both before the Tribunal and before the judge, it was not disputed that X was employed under a continuous contract of employment with E. It was conceded by counsel acting for E before the judge. Thus, E was not permitted to argue before the CA that there was no continuous contract of employment or that there was no termination of X’s employment (page 387).

58.  On the basis of the above observations by Tang JA (as he then was) (see paragraph 57(b) above), Mr Ng argued that notwithstanding the restriction in section 35(2) of the LTO, it was permissible to admit fresh evidence limited to the purpose of showing that had proper investigation been done the result of further investigation would have made a difference to the outcome (which Mr Chain described as the “Sun Min Exception”).^[100] However, as Mr Ng conceded, such observations were merely obiter dicta. Further, the use of the words “may be”, “if” and “it is possible” indicated the hesitancy of the CA about the Sun Min Exception in face of the statutory restriction against receiving further evidence on appeal. In my view, at best Tang JA (as he then was) merely said even if there were the Sun Min Exception (but he left it open), it would not have availed E. But he did not confirm, obiter or otherwise, there was power to admit further evidence on appeal as Mr Ng suggested.

59.  Indeed, Tang JA (as he then was) clarified the position when he gave reasons for the CA’s decision to refuse leave for E to appeal to the CFA. In the proposed amended notice of motion, E put forward the following question (paragraph 9):

“4. Whether the [CA’s] power to receive further evidence on appeal is overridden by reason of section 35(2) of the [LTO] or is restricted to evidence showing that, had proper investigation been done, the result of the further investigation would have made a difference to the outcome.”

Tang JA (as he then was) held this question could not arise in light of section 35(2) of the LTO. He said “…… [there] was an application to this court for leave to adduce additional evidence which we refused. The application did not satisfy the Ladd v Marshall requirements. In any event, we refused leave in the exercise of our discretion, even if, which we did not accept, we have the power to admit further evidence” (my emphasis) (paragraph 14).

60.  This decision on proposed question 4 was not obiter, and it was important in 2 respects:

(a)

In saying the CA refused leave for E to adduce fresh evidence even on the basis that it had power to admit further evidence, Tang JA (as he then was) made clear that actually “we did not accept” there was such power.

(b)

Further, even if “we had the power to admit further evidence”, which Tang JA (as he then was) said “we did not accept”, the application had to satisfy the 3 Ladd v Marshall requirements for receiving fresh evidence on appeal, ie (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (iii) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be controvertible.[101]

61.  In relation to (b) above, ie on the premise that the Sun Min Exception was viable and C was somehow able to rely on it (which D denied and which I find highly doubtful in light of the above analysis), it still remained an exercise of discretion of the court whether or not to admit fresh evidence on appeal. On such assumed basis, the Ladd v Marshall requirements would become relevant so that fresh evidence is received in proper form. If affirmation evidence that verifies and explains the discovery, provenance and authenticity of the fresh evidence is absent, it is difficult to see how the Ladd v Marshall requirements can be satisfied. Moreover, given the circumscribed nature of the Sun Min Exception, then even if it is viable, the applicant will have to show there has been failure on the part of the presiding officer to investigate before the Sun Min Exception can be invoked to show that the result of further investigation would have made a difference to the outcome. The appellant cannot adduce fresh evidence to establish failure to investigate by the presiding officer, and thereby circumvent the restriction against receiving further evidence on appeal under section 35(2) of the LTO.

62.  In C’s II Subs, Mr Ng suggested that refusal to accept the authenticity of the fresh evidence “is outdated and inconsistent with the purposes of O.27 r.4 (one of which is to encourage admissions) or the underlying objectives enshrined in O1A, r1. The proper approach should be that the parties should accept that the documents disclosed by the other side are genuine unless there is sound reason to be believe otherwise ……”

63.  Mr Ng cited Gotland Enterprises Ltd v Kwok Chi Yau (No 2)^[102] in support of his aforesaid proposition. In that case, Anthony Chan J dismissed the plaintiff’s late application made shortly before the scheduled trial for extension of time to file notices of non-admission as to authenticity of certain documents disclosed by various defendants. No explanation was advanced as to why the notices were not filed in time, so the learned judge found he was not in a position to exercise his discretion. He considered the application made at such late stage would cause hardship to the defendants who would then have to incur costs of adducing evidence on the authenticity of the documents.

64.  Whilst Anthony Chan J’s observation as to lack of explanation for late application and hardship caused to the opposing party would have resonance with the present situation where (i) C failed to explain the lateness of the Summons and why the 2 Emails were not adduced for the Trial and/or for the Leave Application and (ii) D would suffer prejudice as it could have legitimately cross-examined C on the 2 Emails and/or adduced countervailing evidence (if any) had the 2 Emails been adduced at the Trial, the circumstances in Gotland Enterprises Ltd were far too different from the present appeal to have any relevance:

(a)	Gotland Enterprises Ltd concerned first instance proceedings and not any appeal. The first instance court was the primary tribunal for receiving and rejecting evidence, but this was not the usual function of an appellate court.
(b)	The effect of Order 27 rule 4(1) of the RHC (which applied to Gotland Enterprises Ltd but not to the present appeal) is that unless party on whom the list of documents was served himself serves notice of non-admission as to the authenticity of any discovered document (see Order 27 rule 4(2) of the RHC), he will be deemed to admit that such discovered document is authentic (page 494). This means that if notice of non-admission as to authenticity is filed within the time prescribed or filed out of time with leave of the court in the first instance proceedings, the other party will have to prove at trial that the discovered document is authentic. This is far different from the situation of an appeal in which the burden falls on the party seeking to adduce fresh evidence to satisfy the Ladd v Marshall requirements, including the requirement that the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible. In the absence of affirmation evidence on this, there will be sparse basis to satisfy this criterion.
(c)	Anthony Chan J in Gotland Enterprises Ltd emphasised the importance of the genuineness of the evidence placed before the first instance court, saying that the court retains a discretion to release the party who is deemed to have admitted authenticity under Order 27 rule 4(1) of the RHC if at any stage of the proceedings it transpired that any discovered document is not genuine (pages 494-495). So while Order 27 rule 4(1) of the RHC (in line with the underlying objectives in Order 1A rule 1 of the RHC) is to encourage admissions, ie to encourage parties to accept “the documents disclosed by the other side” in the discovery process are genuine “unless there is sound reason to believe otherwise, in which case a notice to dispute authenticity should be filed”, then “[should] it turn out subsequently that the faith placed upon the genuineness of any document is undeserved; it can be expected that the court will set its face against any impropriety and will not hesitate to relieve the party which has been misled from the admission” (page 495). Again, these observations were a far cry from the situation of an appeal. First, an attempt to adduce fresh evidence on appeal is not discovery of documents by the other side in first instance proceedings. It is an attempt to rely on documents after the discovery exercise has completed, and after the case has gone to trial with the existing evidence tested and weighed, resulting in factual findings. Secondly, in the first instance proceedings the other side can dispute authenticity by filing the relevant non-admission notice. But such option is lost when fresh evidence is to be adduced on appeal. Thirdly, even if there is deemed admission of authenticity in the first instance proceedings, upon testing the documentary evidence at trial (or at any earlier stage), the other party can seek leave to resile from the deemed admission if it transpires that the genuineness of the relevant documents becomes doubtful. Again such opportunity is not available on appeal.

65.  The above discussions showed clearly why the Ladd v Marshall requirements have to be satisfied for adducing fresh evidence on appeal (even if this were possible on an appeal from the Tribunal despite the restriction in section 35(2) of the LTO). I am unable to accept Mr Ng’s proposition in paragraph 62 above.

66.  Mr Ng further submitted that fresh evidence ought to be received on appeal “so as to achieve the primary aim in exercising the powers of the Court to secure the just resolution of disputes in accordance with the substantive right of the parties”. He cited Astro Nusantara International BV and PT Ayanda Prima Mitra.^[103] I am rather at a loss to understand the relevance of this case since it dealt with the issue of whether extension of time should be granted on an application to resist enforcement of an arbitral award under the New York Convention. Of course, such issue involved an exercise of discretion that required balancing the delay in making the application against its substantive merits (ie the arbitral tribunal was found to have lacked jurisdiction to make the awards against certain parties), and the procedural regime clearly urged the first instance court to give effect to the primary aim of securing a just resolution of disputes in accordance with the substantive rights of the parties (pages 143-144). Again, this concerned first instance proceedings and not any appeal from a resolution already made by the first instance court, and I am unable to see how this case displaces the need to satisfy the Ladd v Marshall requirements for adducing fresh evidence on appeal (even if this were possible on an appeal from the Tribunal given the restriction in section 35(2) of the LTO) which requirements are imposed to address the unfairness (or even injustice) to the other party who had succeeded at the first instance trial without being aware of the fresh evidence and the applicant having had opportunity in the proceedings below to adduce evidence.

67.  Mr Ng next submitted that if this court was not minded to admit fresh evidence for the appeal in view of section 35(2) of the LTO, this court could allow the appeal and to remit the matter back to the Tribunal to be heard before a different presiding officer so that he/she could make appropriate investigation and relevant finding of fact. Mr Ng referred to 梁鴻章(Leung Hung Cheung) v 張頌偉(Cheung Chung Wai).^[104] In that case, the presiding officer found the employee was dismissed by the employer pursuant to section 9 of the EO, which allows an employer to terminate the contract of employment without notice, and dismissed the employee’s claim. DHCJ To (as he then was) allowed the appeal in respect of the employee’s claim for paid annual leave. The learned judge noted the presiding officer did not explain why the claim for paid annual leave was dismissed. If his finding was that the employee was not entitled to compensation for paid annual leave on the basis that his contract of employment was terminated under section 9 of the EO, he must have misinterpreted section 41D of the EO (pages 301-302). If his finding was that the employee had already received compensation thereof, the finding was open to question as he did not address the discrepancies between the employer’s evidence (ie the employer’s copy of the wage receipt with annotation) and the employee’s witness evidence. At the trial, the employee did not produce his copy of the wage receipt (without annotation) for the presiding officer’s consideration, which was therefore new evidence (pages 302-303). DHCJ To (as he then was) said as follows (page 303):

“12. …… Whether the [employee] had received compensation for paid annual leave is question of fact. By virtue of s.35(2) of the [LTO], on an appeal from the [Tribunal], the [CFI] is not entitled to reverse or vary any determination made by a presiding officer on question of fact or receive further evidence. I can only remit the present case to the Presiding Officer who heard it so that he can make the relevant finding of fact.”

68.  In my view, there were 2 takeaways from Leung Hung Cheung when compared with Sun Min. First, the fresh evidence in Leung Hung Cheung being the employee’s copy of the wage receipt (without annotation) was directly relevant to matters/evidence already canvassed at the trial since it would show the annotation on the employer’s copy that was adduced at trial was subsequently added, which would open up possible need for re-evaluation of the available evidence and re-determination of the finding of fact. But in Sun Min, the fresh evidence sought to be adduced was on a point not taken at the Tribunal or in the CFI. Thus, the case was remitted back to the Tribunal for further investigation and finding for the former and not for the latter. This showed that whether a case will be remitted to the Tribunal for re-evaluation and re-determination depends on the circumstances. In refusing to leave to appeal to the CFA, Tang JA (as he then was) in Sun Min said “[whether] the case ought to be remitted to the [Tribunal] must depend on the circumstances of the case. It is an exercise of judgment akin to an exercise of discretion ……” (paragraph 12).

69.  Secondly, even for fresh evidence that appeared to be directly relevant to issues canvassed at trial, DHCJ To (as he then was) in Leung Hung Cheung found himself bound by section 35(2) of the LTO and did not receive such fresh evidence for the appeal before him, which put in doubt the Sun Min Exception that Tang JA (as he then was) initially and diffidently left open, but later plugged.

VI.  OVERVIEW OF APPEAL/NOM

70.  C’s I Subs set out 8 Perfected Grounds, which C’s II Subs grouped into 5 broad grounds of appeal. I propose to deal with the NOM/appeal under these 5 broad grounds, which, according to C, were essentially premised on the DPO’s alleged failures to investigate or to properly investigate the following matters (and C sought leave to adduce the 2 Emails as fresh evidence in support of Grounds A and C below):

(a)	the issue of whether the 2009 COS formed part of the EC in coming to the Framework Non-Compliance Finding (as described by Mr Chain, ie the DPO in dismissing C’s claims in the LT Action held as a matter of fact that the applicable contractual framework for renewal of the EC had not been complied with) (“Ground A”);[105]
(b)	the issue of whether the EC had been revised/varied and renewed/ extended to 3 March 2016 in coming to the No Agreement Finding (as described by Mr Chain, ie the DPO in dismissing C’s claims in the LT Action held as a matter of fact that there was no Agreement to renew the EC) (“Ground B”);
(c)	the issue of whether the revised/varied and renewed/extended EC could be terminated by 3 months’ notice or payment of 3 months’ salary in lieu of notice in coming to the 3 Months’ Termination Notice Finding[106] (as described by Mr Chain, [107] ie the DPO in dismissing C’s claims in the LT Action held as a matter of fact that even if the EC had been renewed, the renewed EC would have contained similar terms and conditions as in the EC (most notably clause 4 of the EC), so D still could have terminated the renewed EC by 3 months’ notice or payment of 3 months’ salary in lieu of notice, and the result would have been the same) (“Ground C”);
(d)	C’s claim that D had contractual obligation to act in good faith (“Ground D”);
(e)	C’s various claims of discrimination, victimisation, abuse of process, malice and/or gross negligence etc against D (“Ground E”).

C also raised other miscellaneous grounds, eg the DPO erred in her duty to investigate by going to the extent of cross-examining C as if she were the lawyer for D.

71.  D’s I Subs complained C’s appeal was in truth an impermissible challenge to the DPO’s findings of fact that were substantially disguised as her “failure to investigate” (see paragraph 56(d) above). C’s 2^nd Subs disputed such contention, and claimed a similar argument was rejected in Mallorca Joenalyn Domingo v Ng Mei Shuen^[108] by B Chu J who cited what I said in Vermeerbergen Peter Alfred, ie that if a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (paragraph 13) (see footnote 73 above). But whether Grounds A-E were valid points of law in the senses explained in Vermeerbergen Peter Alfred (see footnote 73 above) or whether they were in fact nothing more than a guise for impermissible challenge to findings of fact as explained in Treasure Coast Limited v Nio Soang Tek^[109] remained to be seen in the discussions/analysis below.

72.  Mr Ng in C’s II Subs contended that D’s complaint that C’s appeal was an impermissible challenge to findings of fact that was substantially disguised as a “failure to investigate” by the DPO could not stand in face of the Leave Decision because in granting leave for C to appeal against the DPO Judgment this court was “keenly aware of the distinction between questions of fact made by the DPO and a challenge based on the DPO’s failure to discharge the statutory duty to investigate”.^[110] But the threshold requirement for granting leave to appeal was whether the intended appeal had arguable grounds,^[111] and it still remained to be seen at the appeal proper whether on point of law as explained in Part V above C could establish valid challenge to the DPO’s factual findings.

73.  Further, D argued that since C did not challenge the No Authority Finding^[112] (as described by Mr Chain,^[113]ie the DPO in dismissing C’s claims in the LT Action held as a matter of fact that the alleged renewal of the EC had not been approved by the relevant personnel/departments of D with authority to do so), C’s NOM/appeal would fail in limine. D also disputed the authenticity and admissibility of the 2 Emails which C proffered as fresh evidence on appeal.

VII.  GROUND A

74.  By Ground A, C asserted the DPO failed to properly investigate C’s position that the 2009 COS was not incorporated into the EC. Mr Ng submitted Ground A was elicited from paragraphs 32, 33 and 43 of the 1^st Grounds,^[114] and he expanded on Ground A at paragraphs 8-17 of C’s II Subs. It was said Ground A did not rely on or was not dependent on the 2 Emails, but the 2 Emails would strengthen such ground of appeal. On the other hand, D’s answer to Ground A was seen in paragraphs 20-24 of D’s II Subs. But apart from such specific contentions against Ground A, Mr Chain also relied on the No Authority and 3 Months’ Termination Notice Findings, which I will deal with below.

(a)  Overview of parties’ stance

75.  C’s stance  C’s I Subs claimed the DPO erred in law in failing to properly investigate the issue of whether the 2009 COS (described as “Employee Handbook (Pilot) Conditions of Service” on its cover page (F13/938) and issued on 20 March 2009 more than a year after C entered into the EC on 4 March 2008) formed part of the EC even though (a) C expressly raised this in his pleadings, statements and submissions filed with the Tribunal^[115] and (b) C gave evidence at trial^[116] that since he was employed as MTP (which fact was expressly stated in the EC itself) the 2009 COS that only applied to cockpit/line pilots (or non-management pilots) did not apply to him, so had the DPO properly investigated this issue, she would have found such COS did not form part of the EC. In C’s I/II Subs, it was said the question whether the 2009 COS formed part of the EC (ie Ground A) would directly impact on the question whether the EC had been revised/varied and/or renewed/ extended to 3 March 2016 (ie Ground B), so Ground A could not be said to be of insignificant and immaterial bearing as D alleged. But the DPO’s failure to investigate both issues led her to wrongly conclude (i) the 2009 COS formed part of the EC, and (ii) the EC had not been varied/ extended to 3 March 2016, both of which conclusions were unsupportable, which resulted in injustice in that a fair and proper determination of C’s claim could not be attained.

76.  At the outset, I note Ground A as framed in C’s I Subs (also echoed in C’s II Subs) was limited to the DPO’s failure to investigate whether the 2009 COS formed part of the EC without complaint of incorporation of the 2008 COS as part of the EC. Indeed, it was C’s contention at the Trial that the 2009 COS was not incorporated into the EC since he refused to sign acknowledgment of receipt of the same (and other subsequent versions of the COS), and the 2008 COS was also inapplicable because it had been replaced by the 2009 COS and had become obsolete (see paragraph 24(b) above). But in C’s II Subs (see footnote 121 below) and at the NOM Hearing, Mr Ng tried to overcome C’s lack of challenge against the incorporation of the 2008 COS as part of the EC by arguing that the DPO made no finding that the 2008 COS formed part of the EC. This was a point highlighted by Mr Chain, and I will return to this below.

77.  D’s stance  D’s I Subs claimed the DPO made factual finding that there was no renewal of the EC between C and D^[117] in that (a) there was no actual agreement to renew the EC (ie the No Agreement Finding),^[118] (b) the renewal procedures in the applicable contractual framework which required renewal to be in writing (including clause 3 of the EC and clause 2.2.4 of the 2009 COS) had not been complied with (ie the Framework Non-Compliance Finding),^[119] and (c) there was no approval of any renewal by D’s relevant personnel/departments (ie the No Authority Finding). It was said the DPO had appropriately and reasonably investigated this issue to the proper degree, and her conclusion that the 2009 COS was a binding part of the EC was amply supported by evidence.^[120] D claimed that in any event this issue had insignificant/ immaterial bearing on the DPO’s ruling/conclusion in light of (i) other contractual terms that also imposed requirement for renewal of the EC to be in writing, which terms were not challenged on appeal (eg clause 3 of the EC^[121] and clause 1(f) of the 2008 COS^[122]), and (ii) the DPO’s finding that even if the EC were renewed, it would have been renewed on similar terms including a clause that would allow termination by payment of 3 months’ salary in lieu of notice (ie the 3 Months’ Termination Notice Finding).

(b)  Discussion

78.  Mr Ng submitted that managers (or management pilots) (of which C was one) must be distinguished from cockpit/line pilots (or non-management pilots), which distinction was evident in paragraph 5 of D’s 3^rd supplemental statement dated 23 January 2018:^[123]

“5. In particular, there is a distinction between the position of a training manager, and the position of a pilot/captain. The [EC] dated 4 March 2008 clearly states that [C] was employed as a [MTP]. In contrast, the superseded contract dated 3 March 2008 (D-12) states that [C] was previously to be employed specifically as a “Captain, operating Boeing 737-800 aircraft initially”. Therefore, the new contract, ie the [EC] dated 4 March 2008, which contains condition (e) stated above,^[124] reflects that (a) [C] was employed as a manager and not as a captain or pilot, and (b) [C] had no entitlement to training.”

It was said there was abundant evidence to show the 2009 COS was only applicable to cockpit/line pilots (or non-management pilots) but not to managers (or management pilots), and since C was employed in the position of MTP (which was expressly provided in clause 1 of the EC^[125]), he was a manager (or management pilot) and not a cockpit/line pilot (or non-management pilot), so the 2009 COS did not apply to him.

79.  At the NOM Hearing, Mr Ng submitted the inapplicability of the 2009 COS to managers (or management pilots) in contra-distinction to cockpit/line pilots (or non-management pilots) could be seen from the following:

(a)	Clause 2.2.2 of the 2009 COS provided as follows:[126] “2.2.2 TRAINING GRANT The Company shall provide the Employee with a grant sufficient to defray the costs of requisite approved training (the “Training Grant”) ……” Appendix 7.4 of the 2009 COS on Training Grant provided as follows:[127] “The Company shall waive repayment of the Training Grant conditional upon the pilot candidate commencing and undertaking employment as a pilot in [D] for at least the period stated in the applicable Training Grant Category. The three (03) Training Grant Categories are: 7.4.1 TIER 1 – DIRECT ENTRY PILOTS (TYPE RATED) The amount of the Training Grant will be US$15,000 (STAR course) and the Pilot is obligated to serve with [D] for one (01) year immediately following successful conversion training. …… 7.4.2 TIER 2 – DIRECT ENTRY PILOTS (NON-TYPE RATED) The amount of the Training Grant will be $30,000 (FULL TRANSITION course) and the pilot is obligated to serve with [D] for three (03) years immediately following their successful conversion training. ……” Mr Ng noted there was no dispute D did not provide C with any training grant within the meaning of the 2009 COS,[128]and he argued the above provisions concerning training grants in the 2009 COS would not apply to C who was employed as a manager (MTP) and not as a pilot.
(b)	In Appendix 7.1 of the 2009 COS on “Pilot Salary”,[129] there was a table titled “Flight Crew Remuneration Package” that set out (i) “basic salary” (ranging from $22,500 to $50,000), (ii) “MBA(G)” (market-based adjustment (general)) ($10,000), (iii) “monthly gross basic + MBA(G)” (monthly gross basic + market based adjustment (general)) (ranging from $32,500 to $60,000) and (iv) “productivity MBA(P)” (market-based adjustment (productivity)) (at different values for different hours) for line captains and first officers. Clause 6 of C’s EC on “Salary and Allowance” provided as follows:[130] “[C’s] salary would be paid in Hong Kong dollars on a monthly basis and for 12 months annually. It is calculated based on calendar days, and will be payable to [C] in arrears on the last day of each month. Salary will be on a fixed amount and will be paid from commencement of the employment: HK$120,000 per month (will be on a pro-rata basis if it is not a full month). The salary of HK$120,000 may be revised to a mutually agreed sum in the event that you decide to relinquish all training duties and return to line operations as a line Captain.” Mr Ng submitted the remuneration set out in Appendix 7.1 of the 2009 COS was for cockpit/line pilots (or non-management pilots), and not for C who was a manager (or management pilot), and clause 6 of the EC distinguished between C as MTP with “training duties” and a “line Captain” involved in “line operations”. It was said the difference between C and cockpit/line pilots in terms of remuneration under the above provisions supported C’s case that the 2009 COS did not apply to him.
(c)	Clause 2.2.3 of the 2009 COS on “Probation” provided as follows:[131] “2.2.3 PROBATION Pilots joining [D] shall be engaged on probation for the first twelve (12) weeks from the joining date mentioned in the Offer of Employment Letter, or for a longer or shorter period as the Company may in its discretion determine. ……” Mr Ng submitted it was not disputed that C (being employed as a manager / management pilot and not as a cockpit/line pilot / non-management pilot) was not subject to probation, which again showed the 2009 COS did not apply to him. Mr Ng further submitted that even though C made this point in paragraph 8 of his reply dated 2 October 2017 to D’s supplemental statement dated 20 September 2017, the DPO did not deal with it (see paragraph 80(b)(i) below).
(d)	Annex 1 of the 2009 COS on “Corporate Code of Conduct” set out the Employee Code of Conduct that provided inter alia as follows:[132] “6.1.1 GENERAL PROVISIONS Scope of Application …… ·For Employees governed by the Code of Conduct for Management Personnel, the provisions of the Code of Conduct for Management Personnel shall apply. For provisions not included in the Code of Conduct for Management Personnel but included in this [Employee Code of Conduct], such provisions of this [Employee Code of Conduct] shall apply; ……” Mr Ng contended that with (i) there being 2 codes of conduct (ie one for management personnel and another for non-management personnel) and (ii) C being a manager / management pilot, the Employee Code of Conduct would not apply to C, which in turn showed the 2009 COS was not applicable to him. However, I note Annex 1 of the 2009 COS clearly set out how the Employee Code of Conduct would not generally apply, but it also set out the circumstances when it would apply to non-management personnel, which latter provisions would appear to be unnecessary/ redundant if, as Mr Ng submitted, the Employee Code of Conduct did not apply to non-management pilots at all. Mr Ng had no answer save to acknowledge that clause 6.1.1 of Annex 1 of the 2009 COS meant that management personnel would be governed by the Code of Conduct for Management Personnel, but the Employee Code of Conduct would still be applicable to non-management personnel if there were any lacuna in the former code of conduct. But there was no evidence at the Trial and, more importantly, no ground of appeal that there were or might have been specific/particular provisions for renewal of employment contract in the Code of Conduct for Management Personnel such that the corresponding provisions in the 2008 COS (eg clause 1(f)) and/or 2009 COS (eg clause 2.2.4) were not applicable.
(e)	C’s curriculum vitae prepared by Captain Lui Fook Chuen (then DFO of D’s sister company Hong Kong Express Airways Limited (“HKE”), “Lui”)[133] was attached to the letter dated 30 March 2009 by HKE’s President Yang Jian Hong (“Yang”)[134] to the Director-General of Civil Aviation, Civil Aviation Department,[135] and such curriculum vitae (i) set out C’s employment history, (ii) introduced his experience in the aviation field, (iii) described his position and scope of work with D, and also (iv) stated as follows: “Introduction [C] is [MTP], [D], since March 2008. His aviation experience started since 1968 in the Royal Malaysian Air Force for a short service of 3 years and entered into the commercial aviation field in 1971 with the then Malaysia-Singapore Airlines, Singapore Airlines, Mandarin Airlines, Air Asia and Transmile Air. He was an independent contractor for world renowned Flight Training Centres conducting Bowing 737 Aircraft Type Rating courses for pilots to world airline standards for both line and training operations. …… [D] As [MTP], [C’s] task scope covers that of advisory and assistance to the Training Department. …… [C] was the first to conduct B737-800 aircraft Type Rating Courses for [D’s] pilots ……” Mr Ng submitted C’s curriculum vitae clearly showed he was employed by D as MTP (ie manager / management pilot) and not as cockpit/line pilot (or non-management pilot), which in turn supported C’s contention that the 2009 COS did not apply to him.
(f)	On 4 August 2009, D’s President Yang sent a letter to C which stated as follows:[136] “I would like to express my appreciation for [C’s] participation in the Salary Adjustment Scheme for the past few months. [C’s] support has helped the company to reduce the operational costs and release from further retrenchment. As part of the management team, [C has] demonstrated [his] professionalism in maintaining the service quality and productivity during this tough period. ……” (my emphasis) Mr Ng submitted it was clear from such letter that C was regarded as part of D’s management team, which would support C’s contention that the 2009 COS did not apply to him.
(g)	In the email from HKE’s/D’s Becky Li to Stanley Kan,[137] Sarah Lai[138] and Vanessa Tang[139] of D’s Human Resources Department under the caption “FW: David Woon Pls send me a copy of the latest HKA cockpit crew telephone numbers” (“Becky Li Email”),[140] Becky Li requested Vanessa Tang to “[please] check HKA COS of 2008 version as the contract and terms for [C] are different from other pilots. There is no record for his re-title as TRI in p-file and dispute may be arisen ……” (my emphasis). Mr Ng suggested Becky Li’s reference to “other pilots” in her email was in fact a reference to cockpit/line pilots (or non-management pilots), thus Becky Li “…… admitted on behalf of [D] that the contract and terms for [C] are different from the other pilots [ie cockpit/line pilots] ……” It was said D’s such admission constituted declaration against interest such that the court would usually accord it considerable weight.[141] Mr Ng further submitted that C referred to the Becky Li Email in his reply dated 26 December 2017 to D 2nd supplemental statement dated 12 December 2017, but the DPO failed to investigate this contemporaneous email at all (see paragraph 80(b)(ii) below).

80.  On the aforesaid basis, Mr Ng submitted it was clear the 2009 COS was not applicable to C who was a manager / management pilot and not a cockpit/line pilot / non-management pilot, but on this issue (ie whether or not the 2009 COS applied to C) the DPO failed to properly investigate (1) C’s evidence, (2) C’s documents, (3) C’s pleadings and (4) C’s submissions:

(a)	Mr Ng claimed the DPO failed to properly investigate C’s relevant and cogent evidence that the 2009 COS did not apply to him. During C’s cross-examination at the Trial, the DPO asked C to look at clause 12 of the EC and the following passed between the DPO and C:[142] “COURT: I hope you see it. So I cannot see any reason why you can say that this [ie 2009 COS] does not apply to your contract. A. Because cockpit crew – this conditions of service of cockpit crew only apply to non-management pilots.[143] COURT: But you sign on it and you agree that it applies to you. This is the contract you sign. A. I sign on … COURT: Can you see your signature on C-5(6)[144]? Would you please, turn to C-5(6)? You signed the agreement and agreed that such condition did form Part of the contract?[145] A. Yes, but, “In the event of the discrepancy between the rules, regulations, rights, benefits, conditions stipulated in this letter, the latter shall prevail.” This letter …… COURT: Yes. A. … shall prevail. COURT: Yes, but there’s no discrepancies. A. There is. COURT: I cannot see there is – now, you answer my first question first. It – which documents prevail is another matter but then I think there is no dispute – and I cannot see any reason to support your saying that the conditions of service, cockpit crew, was not part of your contract. You agree or not agree? A. It was not part of my contract.[146] COURT: Why? A. Because I’m a management pilot, I do not follow any of the conditions of service of normal pilot.[147] COURT: Now, I have already pointed to you. This is my second time to ask you this question. I’m not going to repeat it. I ask you these questions repeatedly is because I want to give you a chance to clarify your answer. A. Yes. COURT: I – this is the last chance I’m going to ask you about this. This is your contract which you signed and saying that the conditions of service of cockpit crew form part of your contract with the defendant. Are you agree or not agree? A. Okay, I agree. COURT: Thank you. So, and then you’re saying that – the next questions is [D] also point to you D-16(2) which you also acknowledged receipt of such conditions of service. A. “D-16(2)”, is it? Give me time. COURT: D-16(2). To be fair to you, I will allowed you to look at the documents we’re referring to and, for your own benefit, I think you should follow the documents that we are referring to. (Pause) Do you have that document … A. Okay, 16(2), yes. COURT: Do you agree this is your signature, please? A. Yes. COURT: Thank you.” (my emphasis) Mr Ng submitted that even though C gave clear evidence that the 2009 COS was not applicable to him as it was for cockpit crew (ie non-management personnel) only, the DPO failed to properly investigate further, and instead she (i) put question to C suggesting the 2009 COS applied to him because he signed the EC to agree the COS applied to him, and (ii) pressed C further saying she could not see why C would say the COS did not form part of the EC. Also, Mr Ng complained that when C clearly replied to the DPO that the 2009 COS “was not part of [C’s] contract” and that as a management pilot he did “not follow any of the condition of service of normal pilot”, the DPO still failed to properly investigate this issue further.
(b)	Mr Ng submitted the DPO’s failure to investigate the issue of whether the 2009 COS was applicable to C during the evidence-taking stage was exacerbated by her failure to properly investigate C’s case as set out in his pleadings:
	(i)	Mr Ng submitted that even though C made the point in paragraph 79(c) above in paragraph 8 of his reply dated 2 October 2017 to D’s supplemental statement dated 20 September 2017 as follows,[148] the DPO did not deal with it: “…… Other discrepancy not applicable to Management Pilot was paragraph 5 Probation on page 7 Conditions of Service Cockpit Crew. [C] never had to serve any probation period and never had any letter of confirmation nor extension of probation periods ……” Mr Ng also drew attention to C’s reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017 which claimed inter alia as follows,[149]but again the DPO did not deal with it: “Reply4 …… C59(2) 5-YEAR Contract dated from 2009 which calmed all pilots and Management Pilots of its promise of permanent employee/contract. There was no Employee handbook (Pilot) COS ‘2009 D14(11) in [C’s] said Contract and similar to the COS COCKPIT CREW 2008 D13 which was not applicable to [C] (as stated in C59(1) 2nd Oct 2017 Statement paragraph 8). However, which is denied, Employee handbook (Pilot) COS ‘2009 D14(2) Clause 2.2.3 PROBATION clearly stated in paragraph 2 that upon confirmation (of appointment) as a permanent employee of HKA/[D]. As Management Pilot, [C] being headhunted would get terms of condition superior as a confirmed pilot to the paragraph 2 of COS 2009 D14(12) for pilots. This is also consistent with the then President’s commendation of [C’s] continued support (mentioned in C21 and C22) of [D] Company. The word long term was also mentioned (C21) to denote loyal and permanent employee. …… Reply8 …… Paragraph 8 of [C’s] Statement dated 2nd October 2017 C59(1) also stated why was the D13 and thus D14(11) COS (Pilots’ Condition of Service) not applicable to [C] as most of the terms therein ran contrary and not applicable to [C’s] Contract C5. This is another classic case of [D] trying to bring up irrelevant material to mislead and further delay the Court’s process.”
	(ii)	Mr Ng noted C referred to the Becky Li Email (see paragraph 79(g) above) in his reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017, which went on to suggest as follows, ie that D’s admission in such email proved the COS did not form part of the EC,[150] but the DPO failed to investigate this contemporaneous email at all: “Reply8  As stated in paragraph 8 of [C’s] Statement C69(1) dated 2nd October 2017, The Condition of Service Cockpit Crew (D13) [ie the 2008 COS] was not applicable to [C]. This was further proven by [D’s] own admission in [Becky Li Email] dated 28th January 2011 D14(9) Page 1 of 2 “Dear Vanessa, Please check HKA COS of 2008 version (D13) as the Contract and terms for [C] are different from other pilots. (Non-management) HKA COS of 2008 version (D13). Management Pilots have only negotiated stipulated Contract C5 [ie EC] with no Condition of Service 2008 (D13) and it follows that Condition of Service 2009 (D14(11)) was also not applicable to [C] by the admission of [D] hereinabove, though D13 was inserted in C5, it had no legal effect ……”
(c)	Mr Ng submitted the DPO failed to properly investigate the issue whether the 2009 COS was applicable to C in that she failed to investigate C’s submissions dated 22 October 2018 to the effect that the 2009 COS did not apply to him as he was a management pilot:[151] “21. The said C5(1) Clause (e) “CAD APTPL application (any material, product or a program which is designed for end-user to use) kept in abeyance on management request for operational reasons simply meant that [C] and [D] agreed to maintain Clauses (b), (c) and (d) to maintain 6 monthly currency and be ready anytime for example short notice of 12 or 24 hours to carry out duties requiring the current CAD ATPL meaning current 6 monthly RT/PC with a valid 6 monthly Class 1 HKCAD medical certificates as stipulated in Clauses (b), (c) and (d). Such requirement was obvious in all airlines where management could be called out at short notice to fly a plane where there was no standby crew or crew calling sick or no pilots available due to flight delays exceeding their flight time limitations or in an industrial go slow or strike situation. Management pilots do not follow Conditions of Service (COS D16.4/14.9) paragraph under Dear Venessa) of other pilots and thus do not do standby duties of the COS. …… 24. [C] was also not bound by the voided and obsolete Conditions of Service (COS) 2008 which had expired on 1/1/2009 with a new COS. [D] had shown the COS 2010 and also noted others had signed acknowledgment of it and [C] remained not bound by it and had never signed in any COS 2009, COS 2010, COS 2011 or COS 2012 D20(4) Clause 1.3 “Version” clearly stated that new version of COS would replace all older versions and had made them obsolete meaning COS 2008 would be void from 2009, COS 2009 would be void from 2010, COS 2010 would be void from 2011 and so on. Similarly, any [D’s] publication under the Air Operator’s Certificate bound by statute CAD 360 required removal of all obsolete/voided/replaced/superseded publications, documents or books such as OMA Revision 24 removed Revision 23 in C92(9). Besides being mentioned in many areas of [C’s] pretrial statements, the OMA was also clearly spelt out in the exhibits where this Honourable Court certainly had missed it. It was clearly stated in COS 2008 D16(4) paragraph A Application of Conditions, sub paragraph 4. The Condition of Service SHALL BE Read IN CONJUNCTION with the Operations Manual Part A (the “OPM” which is OMA) issued by the company. Another name for COS is the Employee Handbook (Pilot) as in D14(11). Besides [C] had stated in [C’s] statements that COS 2008 did not apply to [C], COS 2008 was obsolete and voided in 2009. The mistake [D] had made was to name it with a year 2008 which naturally become invalid in 2009. 25. Thus, this anomaly was RECTIFIED in subsequent COS from 2009 requiring those affected to sign as confirmation of receipt and acceptance of the content therein, which [C] had stated clearly many times did not apply to Management pilots. Thus, from all pilots’ contracts starting from 2009, the Contract of employment did not have [C’s] C5(4) Clause 12 Other Terms and Conditions. All Employment Contract from 2009 and Employee Handbook (Pilot) undated in many of the Clauses of the Employment Contracts C46(4), C46(5), C46(5)(1). Used the title Employee Handbook (Pilot) with no date of 2009, 2010 or 2011 on it to let it be voided when the years passed. SAs mentioned each pilot had to sign it to be effective and [C] was Management Pilot and not the lower ranked non-Management Pilot. Thus, [C] would not sign the agreement to the Employee Handbook (Pilot), which ever valid year it might be. Thus, in C46(4), This Honourable Court would notice Employee Handbook (Pilot) was incorporated in most clauses and it would only be binding with the pilot if he had signed the Employee Handbook (Pilot) as in D23(5). Note [C] had needed no such Employee Handbook (Pilot) to be binding on [C] and not signed on the page against [C’s] name in D23(5). [D] could not bulldoze it through that without [C’s] signature, [C] was bound by it. Then where was the rule of law? The claim of COS 2008 notices of termination also did not arise because it was not applicable to [C]. It applies to non-management pilots with salary scale in appendix F which was totally alien to [C]. [C] also stated a lot of non-applicability of the COS in COS 2008/2009 in C62.12 paragraph Reply 4 and C62.21 paragraph Reply 8 C64.1 Paragraph 2 and paragraphs 3, 4, 5, 7, 8”

81.  Mr Ng submitted the above matters clearly showed “there is a need for further investigation before a determination can be made”,^[152] and the DPO’s failure to properly investigate the issue of whether the 2009 COS formed part of the EC resulted in injustice in that a fair and proper determination of the claim could not be attained. In support thereof, Mr Ng also tried to harnass my observations in the Leave Decision. He claimed I have said at paragraph 24 therein that “…… C disputed the incorporation of the [COS] (in particular the post-2008 versions of the [COS]) as part of the contractual framework between C and D ……”, which complaints amounted to challenges to the DPO’s failure to discharge the statutory duty to investigate and such failure had given rise to injustice in that a fair and proper determination of the claim cannot be attained. But I went on to say at paragraph 24 that “…… [although] such complaints would go to the DPO’s findings, they arguably amounted to challenges in the senses as explained in paragraph 9 above [see footnote 73 above]” (my emphasis). In granting leave to appeal, the threshold requirement that C had to meet was to establish arguable grounds of appeal, so at that stage this court had not formed (and it would have been improper to form) any definitive view whether C’s contentions in fact amounted to permissible challenge on point of law against the DPO’s findings. The onus was on C to establish so at the appeal proper.

82.  Mr Chain submitted there was no merit in Ground A because C’s II Subs and Mr Ng’s submissions were essentially to repeat and regurgitate the same submissions already made to the DPO, and effectively to suggest the DPO failed to properly investigate just because the DPO found against him.

83.  Having carefully considered Mr Ng’s and Mr Chain’s submissions, I am not persuaded there was merit in Ground A. As Mr Chain submitted (and I agree), the issue of whether the 2009 COS was binding on C had been extensively canvassed before the Tribunal, and the DPO had reasonably considered the issue (see paragraphs 37-40, 55 and 59-60 of the DPO Reasons and paragraphs 27(a)-(e) above). Plainly, in the exercise of her fact-finding powers, the DPO placed weight on the express terms of the EC, as she was entitled to do, and it was her interpretation/construction of the EC (and thus her finding) that the 2008 COS and the 2009 COS were incorporated into and formed part of the contractual framework between C and D.

84.  In my view, even if, as Mr Ng submitted, (a) C were a manager (or management pilot), (b) managers (or management pilots) were different from cockpit/line pilots (or non-management pilots), and (c) the 2009 COS did not generally apply to managers (or management pilots), it was not objectionable in principle under the law of contract for contracting parties to (i) agree to incorporate into their contract the terms of a master agreement (say, between service provider and customer) or general conditions of service (say, between employer and employee), and (ii) more importantly, agree to incorporate into their contract such terms of such master agreement or such conditions of service that on their face did not directly or apparently apply to the relevant parties, especially when the contracting parties agree that the express written contract between them (that incorporates such terms) shall prevail in case of conflict.

85.  At the NOM Hearing, when this court put to Mr Ng the hypothetical situation of whether conditions of service specifically for, say, secretaries (“Sec COS”) would apply to a pilot if the pilot’s written employment contract by mutual agreement expressly (a) incorporated the Sec COS and (b) provided that in the event of discrepancy between the Sec COS and the pilot’s written employment contract the latter would prevail, Mr Ng accepted such incorporation of terms was contractually permissible as it was a matter of freedom of contract. But he fell back to argue that it was a matter of contractual interpretation or construction whether the Sec COS was so incorporated into the pilot’s written employment contract, and one had to consider the surrounding circumstances to see whether the Sec COS was intended to apply to an employee employed in the position of pilot.

86.  Given Mr Ng’s aforesaid recognition of trite contractual principles, the relevant question was whether and how the 2009 COS was contractually incorporated in the EC. The DPO investigated this issue and made express findings. The DPO Reasons referred to the actual terms of clause 12 of the EC,^[153] which provided that “[additional] rules, regulations, rights, benefits or protection from time to time promulgated under the Conditions of Service Cockpit Crew [ie COS] also form part of this contract ……”, and the DPO’s finding (ie her interpretation or construction of clause 12 of the EC) was that such clause specifically and expressly incorporated the COS.^[154]

87.  There was some suggestion from Mr Ng that “the DPO made no finding that the 2008 EC [should be COS] formed part of the EC”.^[155] In my view, this was clearly incorrect because the DPO held that “[it] is clear, however, that the [EC] has duly incorporated the [COS] and its subsequent versions and that the entire set must be taken as the contractual framework that was agreed and underpinned the parties’ relationship” (my emphasis),^[156] and “[the] “01 January 2008 Condition” [ie the 2008 COS] clearly formed part of the contract between [C] and [D] [D-4(4) – ie clause 12 of the EC] as analysed above”.^[157] This was bolstered by 4 further points from the findings by the DPO:

(a)	The DPO found that clause 12 of the EC itself expressly referred to the 2008 COS, ie “[additional] rules, regulations, rights, benefits or protection from time to time promulgated under the Conditions of Service Cockpit Crew [ie COS] also form part of this contract. The latest issue of the COS was published on 01 January 2008 [ie 2008 COS] ……”;[158]
(b)	on 4 March 2008 (ie the same date C signed the EC), C signed a document that acknowledged receipt of the 2008 COS,[159] which stated inter alia that “…… [C] will abide for all the rules and regulations stated in the [COS]”;
(c)	although the acknowledgment C signed (see (b) above) stated he received “the [COS] dated 08 January 2008 from [D] and have read the content therein ……”, the DPO investigated this and made factual finding that the reference to “08” instead of “01” was a typographical error (and C did not appeal against such finding of fact), so the 2008 COS (which was expressly referred to in clause 12 of the EC) clearly formed part of the contract between C and D;[160]
(d)	clause 12 of the EC expressly provided that in the event of discrepancy between the COS and the terms / conditions stipulated in the EC, the latter shall prevail, which meant provisions in the COS that were discrepant with the express terms in the EC would not be applicable to C.

88.  The aforesaid approach to the evidence was well illustrated by how the DPO addressed the Becky Li Email upon which C / Mr Ng placed weight for Ground A. In the Transcript referred to in footnote 116 above, the following passed between the DPO and C at the Trial:^[161]

“COURT: And I would like to remind you, as well, as I said, I have already order them to put forward the relevant superseded versions of the conditions but then it is still for you to say that the relevant clause at 2008 has been supersede. Do you understand? Otherwise, it still applies to your contract.

A. May I just read this by their own admission on 14(9). D-14(9) [ie Becky Li Email]: “Please check HKA COS, 2008 version, as the contract and terms for David Woon are different …”

COURT: What – which …

A. “… from other pilots.”

……

COURT: Yes?

A. Yes, the top email here, under this Becky Li, so “Dear Vanessa, in the middle, …

COURT: Yes.

A. … “Please check HKA, COS, 2008 version, as the contract and terms for David Woon are different from other pilots.” So, this is tell – and it has already been explained clearly in the statement of claim that David Woon’s – this one do not apply to David Woon’s because they are different, because these are only for pilots. For management, we don’t have this 2008, so these are by their own admission.

COURT: Yes, but I will just still look at the contract as signed by you. I cannot see why I cannot look into your contract as signed by you specifically refer to 2008 conditions.

A. Yes. And, yes, so that means, if 2009, 2010, 2011, they are also … (indistinct) then this 2008 do not apply at all.

COURT: I cannot see that, no. The 2008 still applied until and unless you can prove that the other subsequent versions supersedes or replaced the relevant version – relevant clause in respect of the termination and renewal. Even if they have a renew version, it doesn’t mean that they replace everything.

A. But if they have a 2009 version, …

COURT: Yes.

A. … that means my 2008 version in contract is not the 2009 version, so, therefore, it’s not applicable anymore.

COURT: No. If you look at the contract, it doesn’t say so. Can you look at C-5(4)? It doesn’t say that it will be replaced or superseded or becomes unenforceable or not applicable to you upon a new version. It says very clearly it’s part of the contract.

A. But, for management pilot, we don’t …

COURT: I’m sorry, I can – the court will just look into the contract, the four’s corner of the contract.

A. And the court will not care whether there’s a requirement to sign every condition of service …

COURT: There’s not …

A. ... to agree?

COURT: There’s not such a requirement in the contract. At the end of the day, I look into the contract. It must be.

A. And what happen if the claimant refuse – I mean the defendant refuse to show me the superseded …

COURT: And then, yet again, it is for you to prove your case.

A. Yes, thank you. Because this case now we are just partly dealing with contract. I have the full case here about malice and what – I have not even started my opening submission.

COURT: I believe all evidence have been submitted in support of your claim. There has been there. There should not be no – there should not be any new evidence to be put in at this stage.

A. Yes. Yes, thank you.

……” (my emphasis)

Plainly, C was referring to the Becky Li Email and suggesting the 2008 COS was for non-management pilots so that for managers like him “…… we don’t have this [2008 COS] ……” But as explained above, quite apart from whether the 2008 COS was generally intended for cockpit/line pilots (or non-management pilots) and not managers (or management pilots) and whether C was employed in the position as manager, C still had to face up to the contractual framework binding between him and D as expressly provided for in the written EC that they signed. I do not see the above extract from the Transcript as a failure by DPO to investigate the Becky Li Email. Instead, the DPO, having considered such email that was brought to her attention, fairly raised with C a viewpoint premised on the express terms of the EC signed by both parties (and C did not dispute the EC was the contract binding on both C and D) that incorporated the 2008 COS as part of the EC in order to give opportunity for C to address this. As explained in Chitty on Contracts,

“Where the agreement of the parties has been reduced to writing and the document containing the agreement has been signed by one or both of them, it is well-established that the party signing will ordinarily be bound by the terms of the written agreement whether or not they have read them and whether or not they are ignorant of their precise legal effect ……”^[162]

“The terms of a contract may be contained in more than one document. In such a case, the terms set out in one document may incorporate into the contract terms to be found in another document.”^[163]

And here the 2008 COS was made available to C and he signed to acknowledge receipt of the same and to confirm he would abide by the rules and regulations stated therein (see paragraph 87(b) above).

89.  In my view, notwithstanding any suggestion that the 2009 COS were applicable to cockpit/line pilots (or non-management pilots) and not to managers (or management pilots), the DPO’s fact-finding process seen in above analysis and her findings on the contractual framework between C and D that included the incorporation of the 2008 COS as part of the EC was sufficient and unassailable. Further, as Mr Chain submitted, the incorporation of the 2008 COS as part of the EC had significance because Ground A essentially challenged the DPO’s alleged failure to investigate whether the 2009 COS formed part of the EC. But such ground of appeal ignored the 3 Months’ Termination Notice Finding, which I return to below.

90.  Turning to the 2009 COS, the DPO also found the 2009 COS was applicable to the EC on the basis that (a) “…… the [EC] has duly incorporated the [COS] [ie the 2008 COS which was the relevant version at the time as explained above] and its subsequent versions ……”,^[164] and (b) “…… as of 3 June 2011, the parties’ contractual relationship continued to be governed by, inter alia the latest version of the [COS]. It is therefore [the DPO’s] finding, as at March 2011, the [2009 COS] governs the parties conduct in performing the contract including the contract renewal”.^[165]

91.  Clause 12 of the EC expressly incorporated not only the 2008 COS, but also the additional rules, regulations, rights, benefits or protection “from time to time promulgated” under the COS. Whether these words, in the circumstances, were enough to incorporate the 2009 COS into the EC, ie whether D could be said to have fairly and reasonably brought the 2009 COS to the notice of C to form part of the EC, was a question of fact,^[166] and thus the DPO’s finding that those words in clause 12 of the EC were apt to incorporate the 2009 COS (ie a subsequently promulgated version of the COS) as part of the EC was a finding of fact. Moreover, 2 matters were of note. First, the DPO cited DBS Bank (Hong Kong) Ltd v Chan Chesta & anor^[167] for the proposition that separate terms and conditions as well as subsequent versions thereof could be incorporated into the written contract by express reference.^[168] Secondly, if there were clear words of incorporation in the written contract (and the words of clause 12 of the EC were there to be read), it made no difference whether or not C had actually read or paid attention to the 2009 COS, which proposition was clearly supported by relevant authorities (see also Landale Development Limited v Zhum Heng Development Limited,^[169] Credit Suisse Financial Products v Societe Generale d’Enterprises,^[170] O’Brien v MGN Ltd,^[171] 7E Communications Ltd v Vertex Antennentechnik GmbH,^[172] 張志明訴創庫迷你倉有限公司 (which discussed the above authorities),^[173] and Public Institution for Social Security v Banque Pictet & Cie SA & ors^[174]).

92.  It must be noted that in the present appeal C did not challenge the DPO’s factual finding that the 2009 COS was incorporated into the contractual framework between C and D on the basis of the contractual principles, but Ground A was limited to the contention that C was a manager (or management pilot) and not a cockpit/line pilot (or non-management pilot), and hence the 2009 COS was not applicable to C. I am unable to see how such contention could establish a viable ground of appeal when notwithstanding C’s position as manager, clause 12 of the EC expressly incorporated the 2008 COS and 2009 COS, and the DPO made factual findings that (a) C signed the EC which clearly stated that the COS formed part of the contract, (b) at the same time C acknowledged receipt of the 2008 COS (and reference therein to the COS of 8 January 2008 was a mere typographical error) and confirmed he would abide by the rules/regulations in the COS, and (c) the 2009 COS was part of the binding contractual framework governing the contractual relationship between C and D as at March/June 2011.^[175]

93.  Mr Chain also submitted that even if the 2009 COS were somehow not binding on C (which D denied), (a) C would have remained bound by the 2008 COS as he signed to acknowledge receipt of the 2008 COS and to confirm he would abide by the rules/regulations in the COS (see paragraph 87(b) above), and (b) the contractual framework for renewal of the EC whether under the 2008 COS or the 2009 COS was similar,^[176] so the material finding by the DPO (ie the Framework Non-Compliance Finding that the contractual procedures for renewal had not been complied with) would have been the same under the 2008 COS.^[177] In short, the DPO made a factual finding to reject C’s contention that the 2008 COS was obsolete. Mr Ng in his oral reply submissions argued that C’s I/II Subs focused on whether the 2009 COS formed part of the EC because of the DPO’s finding that the 2009 COS governed renewal of the EC.^[178] But the DPO did make the alternative finding that the 2008 COS was still applicable if somehow the 2009 COS was not, and Mr Ng had no answer except to say the 2008 COS was also only applicable to cockpit/line pilots (or non-management pilots) and not to C as manager (or management pilot). In my view, not only was this not raised as part of Ground A, such contention could not be supported in light of the discussions/conclusions above. In my view, there was no viable basis to undermine the DPO’s alternative finding in relation to the applicability of the 2008 COS to C as part of the contractual framework between C and D as discussed above.

94.  In my view and as Mr Chain submitted, the above discussions/conclusions explained why Mr Ng sought to rely on new evidence (ie the 2 Emails) to bring a claim for rectification of the EC by reason of mistake^[179] by ridding the EC of clause 12 and thereby also ridding the 2008 COS (and consequently the 2009 COS) from the contractual framework between C and D.

95.  Mr Ng argued the 13/1/09 Email dated 13 January 2009 (which he admitted was sent (a) in response to C’s earlier 10/1/09 Email dated 10 January 2009 to D’s then COO Lim with copy to D’s then GMT Stewart, and (b) before the 2009 COS came into effect on 20 March 2009) showed that (i) the 2009 COS did not apply to C, so (ii) clause 12 of the EC did not reflect the parties’ true agreement, and (iii) the EC ought to be rectified for mutual common mistake between C and D or for C’s unilateral mistake of which D had knowledge.^[180]

96.  The 10/1/09 Email provided inter alia that:

“With reference to our discussion earlier regarding my 04 March 2008 Management pilot contract “Manager, Training Projects”, you were made aware that in page 2 clause 4 “Notice of Termination” would not apply to me as I was exempted by HKCAD and never attended any Company B737 aircraft Type Conversion Course. I was granted Type Rating Instructor status by HKCAD to conduct HKCAD B737 Type Conversion Course since 23/6/2008. The only course I had completed was a transition course on 15/11/2008 in Hainan, which was through Company direction to instruct Hainan Airline Pilots in the future.

Currently this is held in abeyance as I had not done other additional qualification of Chinese Aviation Licences.

I took notice of your earlier assurance that there would be no termination of employment for me for this Management position and the only route is via page 3 clause 6 to relinquish my Management position to that of non Management position of “captain”, which a new contract would be effected similar to the contract which I had signed on 3/3/2008.

I had also brought to your attention regarding the discrepancy on page 4 Clause 12 of my [MTP] contract which had the exact replica of page 4 clause 11 “Other Terms and Conditions” in my 03 March 2008 Contract for non-Management pilots “Captain” which included the 1/1/2008 Condition of Service 2008.

Kindly provide me the Management Pilot Condition of Service which are relevant to all Management Pilots or in particular, my designation as [MTP].”

97.  The 13/1/09 Email provided inter alia that:

“As per your email enquiry, the below individual Management Condition of Service for the position of [MTP] is relevant to you.

As you had brought up to my attention in your previous email, the errors in your employment contract, I hereby confirm that the Clause 12 in your 04 March 2008 Employment Contract regarding the Non-Management Condition of Service 2008 and subsequent COS did not apply to you.

It was a mistake which was included erroneously similar to your earlier Non-Management contract signed on 03 March 2008 which had been superseded and rendered void.

By March, COS 2009 will be in effect and will supersede this current COS 2008 and you need not sign COS2009 to confirm your disagreement and not to be bound by it nor will you be bound by nor will you be bound by subsequent future COS as long as you are in Management.

Similarly as you had pointed out that Clause 4 Notice Period of Termination in your employment contract was inapplicable as you had been authorized and endorsed by HKCAD as an instructor to conduct B737-800 classes for our company since June 2008.

Thus no conversion courses for you until our future expansion plan of A330 aircraft introduction sometime next year. Transition course is not related to any Type conversion course.

The Transition Course you had completed in November 2008 is to enable you to conduct B737-800 courses for training of foreign pilots of parent company Hainan Airlines.

When you complete you first Line Flying Under Supervision which we had planned for you in March 2009, you would have satisfied your employment contract Clause 3 Duration requirements.

Management Position: [MTP]

Terms of Employment

Fixed term of 3 to 5 years from first day of line flying under supervision as per Clause 3 of your employment contract dated 04 March 2008.

Employment

Training Manager duties as spelt out in OMA

Principal Officer to all assigned Flight Operation Projects.

To complete Transition Courses whenever required to conduct ad hoc training for other client airlines.

Termination of Management Position

Management position may be terminated upon mutual agreement by either party as stated in Clause 6 of your employment contract to relinquish all duties and return to line operation as a line captain.

To return to line operation as line captain, a new line captain contract with designation “Captain” will be mutually agreed upon.

A Non-Management Condition of Service with employee’s signature thereto in agreement to indicate such yearly binding revised agreement to be in effect.

……

We will review the above and your employment contract from time to time in email or any other communication as Clause 15 of your employment contract effected authority upon me as COO to grant you mutually agreeable amendments for conditions and terms of service or appendix to correct any mistake in the employment contract that we deemed necessary.

I am always open to provide better conditions of service so that we do not fall behind our competitors.

I needed your service long term and I intend to substitute a 5-year contract for you sometime in 2011/2012 in line with our discussion in mid December 2008 of permanent contract above age 65 for you and other pilots in management or training position.

.…” (my emphasis)

98.  There was no dispute the 2 Emails were not adduced in the LT Action and/or before the DPO at the Trial, not referred to in the 1^st, 3^rd and 4^th Grounds, and not relied on by C for the Leave Application for which this court granted leave for C to appeal against DPO Judgment. The 2 Emails first surfaced in C’s I Subs. That being the case, it was not easy to see how the DPO could be criticised for “failing” to investigate the 2 Emails that were not even before her, and/or how C could say he had leave of this court under the Leave Decision to pursue Ground A insofar as it relied on the 2 Emails (and for that matter Ground C that also relied on the 2 Emails). Nevertheless, C applied by the Summons for leave to admit the 2 Emails for the NOM Hearing “for the limited purpose of showing that had proper investigation been done by the [DPO], the result of the outcome of the claim in the [LT Action] would be different” (ie C relied on the Sun Min Exception).

99.  Even if the Sun Min Exception was viable and/or the Ladd v Marshall requirements need not be satisfied (which I do not agree), it appeared that C’s intention to adduce the 2 Emails for the appeal was to show that had the DPO properly investigated the issue of whether the 2009 COS formed part of the EC when, according to C, the 2009 COS only applied to cockpit crew and not to managers / management pilots (of which C was one), the DPO would somehow have elicited the 2 Emails that would have led her to conclude there was common/unilateral mistake over clause 12 in the EC such that the EC ought to be rectified by removing such clause. But the foundational premise of such contention must be that the DPO failed to conduct proper investigation otherwise there would have been no basis to suggest what would have happened (and to adduce fresh evidence for such purpose) on the premise of “had the DPO properly investigated”.

100.  In my view, even putting aside D’s other objections, there was no sufficient basis to suggest the DPO failed to conduct proper investigation. First, as seen in paragraphs 79-80 above, C on his own case was very much alive to the issue of whether the 2009 COS was applicable to him as a manager (or management pilot), and as a litigant in the LT Action he bore primary responsibility in the preparation and procurement of evidence for his case. Given the ambit of the evidence, documents, pleadings and submissions outlined in paragraphs 79-80 above that had been put before the DPO, I am unable to see how the DPO would be obliged to further investigate the matter when C, despite being aware of the issue and despite having placed such evidence, documents, pleadings and submissions on such issue before the DPO, did not see fit to adduce the 2 Emails in the course of the LT Action over the years. After all, the DPO was only obliged to conduct appropriate and reasonable investigation, which was a matter of degree depending on the circumstances of the case (including how C’s case was framed) (see paragraph 56(a) above). Secondly, in the LT Action C did not plead or advance a case for rectification to remove clause 12 (and hence any COS) from the EC. The duty to investigate any matter which the DPO might consider “relevant to a claim” did not require her to investigate matters that had not been asserted, especially when C already put forward an arguable cause of action and/or countervailing contention(s) to D’s defence (even though at the end of the day the DPO did not accept C’s case) as well as adduced evidence and made submissions in support thereof. There was no need for the DPO to take over the role of an advocate for C to consider the possibility of rectification of the EC (that had not been advanced) premised on the 2 Emails (that had not been disclosed/adduced).^[181] In the circumstances and as explained in the above discussions/conclusions, the DPO could not be faulted for coming to her finding, quite irrespective of C’s assertion that he was a manager (or management pilot), and of the fact that the 2008 COS and the 2009 COS were expressly incorporated into the EC by clause 12 thereof and formed part of the binding contractual framework that governed the contractual relationship between C and D. As the DPO did not, in my view, fail to investigate the issue of whether the 2009 COS was part of the EC, even if the Sun Min Exception were viable, which I find to be highly doubtful, it would not have arisen.

101.  This brings me nicely to Mr Chain’s submission that the 2 Emails were not being adduced for the Sun Min Exception, but instead they were being adduced as fresh evidence to make good Ground A by demonstrating (beyond what had been asserted/advanced in the LT Action) that clause 12 of the EC did not reflect the parties’ true agreement as it could not have been the parties’ intention for the 2008 COS and/or the 2009 COS (which were only applicable to cockpit crew) to apply to C who was employed as a manager (or management pilot), and therefore the EC ought to be rectified for mutual/common mistake between C and D or for C’s unilateral mistake of which D had knowledge. In short, C sought to adduce the 2 Emails to argue substantively that there was mistake in that (a) by the 10/1/09 Email C expressly claimed there was a “discrepancy” in that the EC contained clause 12 but C was “not bound” by the “non-Management” 2008 COS and other subsequent “non- Management” COS, and (b) by the 13/1/09 Email D’s then COO Lim expressly referred to “errors” in the EC, confirmed clause 12 of the EC “was a mistake which was included erroneously” in the EC, and stated neither the 2008 COS nor the 2009 COS applied to C, and on such fresh evidence it was said the EC should be rectified (i) for C’s/D’s common mistake by removing clause 12 (and thus removing the incorporation of any COS) as it “involves carrying into effect what the parties appear to have actually agreed that the document should say”,^[182] or (ii) for C’s unilateral mistake which D was aware as the EC “contains a provision which one party knows that the other party thinks is not there, or knows that the other party is mistaken about its meaning, and the court may, as a matter of discretion, either refuse or allow [D in the present case] to enforce the contract as it would ordinarily be construed”.^[183] In my view, these were substantive arguments going far beyond the Sun Min Exception.

102.  In any event, upon careful consideration, I agree with Mr Chain’s 3 answers to C’s reliance on alleged common mistake and/or alleged unilateral mistake to seek rectification of the EC. First, at the NOM Hearing, Mr Ng submitted that the matter of mistake was expressly raised in the 3^rd Grounds:^[184]

“IQ) Trial judge’s judgment page 9 from line A to page 10 line B on Some other alternative arguments by [C] emails and Letters

[C] had stated in pretrial, during trial and [C’s] submission that the then COO was aware of the mistake to include a non-permanent pilot’s 1/1/2008 COS for [C’s] earlier D12(4) contract Clause 11 Other Terms and Condition signed in the morning of 4/3/2008 into [C’s] management pilot’s C5(4) contract Clause 12 Other Terms and Condition. He told [C] that it was an incomplete job of deleting management Clause 12 on 1/1/1008 COS in [C’s] C5(4) contract.

He had acknowledged that the staff that had given [C] to sign the non-management D12 position of captain’s contract in the morning of 4/3/2008 had not deleted the non-management Clause 11 on 1/1/2008 COS to copy and paste into [C’s] C5(4) contract which was signed by [C] in the afternoon.

But he assured [C] that [C] needed not sign the subcontract COS 2008 and subsequent COS. [C] had followed his advice.

……”

Whilst Mr Chain did not say the point was not mentioned in the 1^st, 2^nd and 3^rd Grounds, his subtler contention was that C did not ever rely on the 2 Emails in the 1^st, 2^nd and 3^rd Grounds to contend there was common mistake or unilateral mistake for seeking rectification of the EC. Indeed, mistake was not a new point, and it was canvassed at the Trial and addressed in the DPO Reasons (see paragraph 104 below). Since C’s contention that rested on mistake was already elicited at the Trial, it was incumbent on him as claimant to bring forth the evidence in support thereof. I do not see any failure to investigate on the part of the DPO when she had no duty to act as advocate for C who had primary responsibility for preparation and procurement of evidence in support of his case.

103.  Secondly, the alleged mistake was the incorporation of the 2008 COS as part of the EC by clause 12 thereof. Although clause 12 referred to subsequent versions of the COS that might be promulgated from time to time, the relevant COS as at 4 March 2008 was the 2008 COS. But Ground A of the Perfected Grounds limited its attack against the 2009 COS without express complaint against the 2008 COS, which explained why Ground A did not even expressly suggest the DPO failed to consider whether the EC should be rectified to remove clause 12 altogether for common mistake / unilateral mistake. I have carefully read Ground A in paragraph 1 of C’s I Subs and agree with Mr Chain’s above proposition.

104.  Thirdly and more importantly, the DPO Reasons actually noted “[C] now alleges that the acceptance of these [COS] as forming part of his contract was a mistake”.^[185] As a matter of factual findings, the DPO concluded there was no mistake on the basis that (a) C signed the EC which by clause 12 clearly stated the COS formed part of the contract, and at the same time C also signed to acknowledge receipt of the 2008 COS and to confirm he would abide by the rules and regulations stated in the COS,^[186] (b) C with his background would not have been mistaken, so this was a “disingenuous argument seeking to avail himself of the claims sought”,^[187] and (c) as a matter of law, in the absence of mistake, a lack of understanding of the contents, meaning, terms or effect of a document signed by a person of full age and understanding was not a ground to disown the document.^[188] In light of the above, I cannot see how the DPO could be criticised as having failed to investigate the matter of mistake.

105.  In short, Mr Ng asked this court to allow C to adduce the 2 Emails on appeal for a point that was not advanced in the LT Action, that was not referred to in the Perfected Grounds / C’s I Subs, that rested on the 2 Emails that was not before the DPO (or even before this court at the Leave Hearing), but the DPO had actually considered, addressed and made findings of fact that the 2008 COS and the 2009 COS formed part of the EC, and that there was no mistake by C in acknowledging the COS as forming part of his EC. In my view, the DPO had conducted appropriate and reasonable investigation on the matters that had material bearing on her findings/ruling, and she should not be criticised for having failed to investigate the issue of whether the 2009 COS was part of the EC and/or to investigate the 2 Emails when C, despite having alleged mistake at the Trial, did not see fit to disclose such documents to the DPO at the Trial or to this court for the Leave Application. To allow C to adduce the 2 Emails on appeal was tantamount to allow C to fly against the statutory restraint from receiving evidence on appeal on a point he had known and raised at the Trial and the DPO had dealt with, and to pull up his appeal by his own bootstraps (ie his own fresh evidence), which would be unfair to D and also the DPO. For the above reasons, including absence of any failure to conduct proper investigation by the DPO, I am unable to see how the Sun Min Exception could/would aid C, or how there would be sufficient basis to remit the matter back to the Tribunal for further investigation or finding.

106.  So far, I had discussed C’s case for Ground A on the assumption of a viable Sun Min Exception that involved an exercise of discretion to admit fresh evidence on appeal. But as to the power to receive further evidence on appeal, one must start with section 35(2) of the LTO which provides that on an appeal from the Tribunal, the CFI cannot receive new evidence. I have explained in Part V(d) above that the Sun Min Exception was highly doubtful given that it was posed by Tang JA (as he then was) merely for argument’s sake (ie even if “we had the power to admit further evidence” which “we did not accept”).

107.  In any event, even if the Sun Min Exception was viable, C did not even begin to satisfy the Ladd v Marshall requirements that would invite the exercise of discretion to favour receiving the 2 Emails as fresh evidence for the Sun Min Exception. C raised the 2 Emails for the 1^st time in C’s I Subs, and D made clear at first opportunity in D’s I Subs that it did not accept the authenticity of the 2 Emails. Upon my rejection of C’s Aff, there was simply no statement/affirmation evidence from C in relation to the 2 Emails, including (a) the circumstances how they came into being, (b) how they were stored, discovered and retrieved, (c) why they were not disclosed at the latest by 29 January 2018 (ie 10 months before the Trial) when C adduced further documentary evidence,^[189] (d) why they could not have been obtained with reasonable diligence for use at the Trial (especially when C was alive to the issue of whether the 2009 COS was part of the EC) and/or at the Leave Hearing (especially when C knew of the DPO Reasons and disagreed with the same) but somehow they became available for C’s I Subs in October 2020, and (e) why, despite the alleged importance of the 2 Emails, they were not referred to in any subsequent communications (eg those in 2011) that were placed before the DPO.^[190] For reasons explained above, I am not persuaded as to the provenance of the 2 Emails, and there was sufficient basis to say that had the 2 Emails been adduced at the Trial, it would have provided fodder for D’s legitimate cross-examination to test their authenticity and/or provenance, which opportunity was now lost to D in view of the lateness of C’s attempt to adduce fresh evidence on appeal. Thus, even if the Sun Min Exception were viable, bearing in mind the foundational imperative of fairness, I would not have exercised my discretion to allow the 2 Emails to be adduced on appeal.

108.  In all the circumstances, ground A had no merit.

VIII.  GROUND B

109.  By Ground B, C asserted the DPO failed to properly investigate C’s position that the EC had been varied and extended to 3 March 2016. Ground B was set out in paragraphs 2, 3 and 5 of C’s I Subs, and relied on the Contract Renewal Documents. Paragraphs 21-29 of C’s II Subs expanded on Ground B, and the contentions therein still relied on the Contract Renewal Documents. D’s response was seen in paragraph 5 of D’s I Subs, which was expanded upon in paragraphs 25-30 of D’s II Subs, but D also relied on the No Authority Finding and the Framework Non-Compliance Finding made by the DPO.

110.  In C’s 1^st Subs, C claimed the DPO erred in law in failing to properly investigate the issue of whether the EC had been varied and extended to 3 March 2016 (ie Ground B) even though the following Contract Renewal Documents (and the DPO proceeded on the basis that these documents were authentic in the absence of challenge otherwise by D) clearly supported C’s case that the EC had been so revised and extended to 3 March 2016:

(a)	D’s then COO Lim by email dated 27 August 2010 to C titled “Contract Renewal” with copy to Stewart (ie the 27/8/10 Email, see footnote 17 above) stated that: “With reference to your concern regarding the ambiguity of the mentioned clause in your contract regarding Company’s intention of renewal of pilot’s contract, renewal of your contract, and notwithstanding any official instructions to you to the contrary, Company will bear the responsibility to affirm your new contract which will be extended for a period of 5 years expiring on 03 March 2016. We had intended to streamline to 5 years as we had done so for later joiners. ……” (my emphasis) Mr Ng submitted that even though C referred to and relied on the 27/8/2010 Email in paragraph 19 of C’s revised statement of claim dated 31 May 2017,[191]and paragraph 11 of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2011,[192]the DPO failed to properly investigate such contemporaneous email, which failure was particularly troublesome as such email expressly stated the renewal of the EC would occur even in the event that D “did not give prior notice of renewal” and “notwithstanding any official instructions to [C] to the contrary”. Mr Ng submitted it was absurd to suggest D’s then COO Lim, who was a member of D’s senior management as evident from D’s contact list (see footnote 251 above) and who had important duties and responsibilities,[193]did not have authority from D to make the promise in the 27/8/10 Email. Mr Ng further submitted that D’s then COO Lim must have written on behalf of D, especially as Lim referred to “Company” 3 times in the above extract of such email, and copied this email to D’s then GMT Stewart (and all Training Managers,[194]of which C was one, had to report to Stewart). At the NOM Hearing, Mr Ng also noted the post-contract 27/8/10 Email stated there would be renewal of the EC even if D “did not give prior notice of renewal of [C’s EC], and notwithstanding any official instructions to [C] to the contrary”, which was consistent with the pre-contract promise of contract renewal for 5 years in the 23/1/08 Email referred to in paragraph 134 below (but hitherto not referred to in C’s I/II Subs).
(b)	D’s then COO Lim by letter dated 28 August 2010 to C made on D’s letterhead and titled “Contract Renewal” (ie the 28/8/10 Letter, see footnote 17 above) stated that: “With reference to our telephone conversation with reference to your concern regarding the ambiguity of the mentioned clause in your contract regarding Company’s intention of renewal of pilot’s contract, please be reassured that in the event that the Company did not give prior notice of renewal of your contract, and notwithstanding any official instructions to you to the contrary, the Company will bear the responsibility to affirm your new contract which will be extended for a period of 5 years expiring on 03 March 2016. We had intended to streamline to 5 years as we had done so for later joiners. ……” (my emphasis) In C’s II Subs, Mr Ng reiterated his submissions for (a) above mutatis mutandis, and further submitted that the 28/8/10 Letter was attached to an email dated 28 August 2010 10:22:20 and captioned “Contract Renewal” from D’s then COO Lim to C with copy to Stewart (“28/8/10 1st Email”), which stated inter alia that “[as] per your request, attachment Contract Renewal Company letter for your perusal. Thank you for dropping by to reconfirm your full support and agreement to yesterday’s email of our promises for your future with our Company to 2016 and beyond ……” (my emphasis).[195] At the NOM Hearing, Mr Ng submitted that the express reference by D’s then COO Lim to “our promises” in the 28/8/10 1st Email must have been a reference to D’s promises in “yesterday’s email”, ie the 27/8/10 Email, that his contract would be renewed up to 2016 and beyond. Whilst Mr Ng acknowledged the DPO dealt with 28/8/10 1st Email, he complained that she failed to investigate the clear promise in 28/8/10 Letter that was substantially the same as the earlier 27/8/10 Email.
(c)	D’s then COO Lim sent email dated 28 August 2010 14:15:47 and captioned “Contract Renewal [C], [MTP]” to D’s then GMT Stewart with copy to C (ie the 28/8/10 2nd Email, see footnote 17 above) as follows: “At a later date, kindly advise HR [human resources] accordingly for the renewal of [C’s] contract for a 5 years period with the same remuneration, terms and conditions of service from 04 March 2011 to 03 March 2016. ……” Mr Ng submitted the 28/8/10 2nd Email amounted to clear instructions from D’s then COO to D’s then GMT, which importantly stated C’s “remuneration, benefit, terms and conditions” under the revised and renewed employment contract had been agreed to be the same as those under the EC.
(d)	D’s then GMT Stewart sent a letter dated 8 November 2010 to D’s then (Acting) DFO Chow on D’s letterhead titled “Contract Renewal [C], [MTP]” (ie the 8/11/10 Letter, see footnote 17 above) as follows: “As I will be leaving the management, I would like to hand over this matter or your action. Kindly advise HR [human resources] accordingly for the renewal of [C’s] contract for a 5 years period with the same remuneration, terms and conditions of service from 04 March 2011 to 03 March 2016. …… The former COO [Lim] had earlier written to [C] in August 2010 confirming the earlier verbal agreement. ……” (my emphasis) Mr Ng submitted that in stating D’s then COO Lim “had earlier written” to C “confirming the earlier verbal agreement” (which verbal agreement was consistent with the Contract Renewal Documents that confirmed C’s EC would be renewed for 5 years to 3 March 2016), D’s then GMT Stewart must have been referring to the 27/8/10 Email (copied to him) by which D’s then COO Lim confirmed the EC would be revised and renewed to 3 March 2016. Mr Ng complained that although C referred to and relied on the 8/11/10 Letter in paragraph 22 C’s revised statement of claim dated 31 May 2017,[196]the DPO failed to properly investigate this contemporaneous email, including reference therein to the “earlier verbal agreement” between D’s then COO Lim and C that the EC would be revised and renewed to 3 March 2016. It was said that such failure was particularly troublesome since D’s then GMT Stewart stated in the 8/11/10 Letter that he was handing over this matter to D’s then (Acting) DFO for the latter’s “action”, and such “action” was required only if it had been agreed that the EC would be revised and renewed to 3 March 2016.

111.  Mr Ng therefore submitted that the Contract Renewal Documents and 28/8/10 1^st Email clearly supported C’s case as set out in C’s pleadings (see paragraphs 19 and 22 of C’s revised statement of claim dated 31 May 2017,^[197] and paragraphs 4,^[198] 11,^[199] 12,^[200] 17^[201] and 26^[202] of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2011), but the DPO failed to properly investigate these contemporaneous documents, which constituted a failure to “carry out investigation on all relevant matters” pertaining to the issue of whether the EC had been renewed to 3 March 2016, and hence her finding that there was no such renewal was insupportable.^[203] C’s I Subs then claimed that since (a) parties to a written contract may effect a variation of the contract by modifying or altering its terms by mutual agreement,^[204] and (b) the terms of a written instrument may be varied by a subsequent agreement whether oral of written,^[205] the DPO (had she properly investigated the issue of whether the EC had been varied and extended to 3 March 2016) would have found the EC had been so varied and extended to 3 March 2016.

112.  The D’s I Subs contended (and I agree) the DPO had considered the Contract Renewal Documents and had appropriately/ reasonably investigated this issue to the proper degree, which issue was in fact the primary focus of the DPO Reasons.^[206] The Contract Renewal Documents that Mr Ng relied on for Ground B were precisely the 4 documents the DPO specifically considered and addressed by the DPO in paragraphs 6, 32-33 and 46-52 of the DPO Reasons (see paragraph 27(f)-(j) above), and she made “factual findings on what in context is a fair reading of these various emails and letters, concluding that, as a matter of fact, they amounted to a recommendation and not a contract”.^[207] I agree with Mr Chain that on such basis Ground B was nothing more than a regurgitation of the same points taken at the Tribunal and a disguised attempt to challenge the DPO’s factual findings.

113.  But then, Mr Ng had several “mutations” (as Mr Chain would describe them) in relation to Ground B. First, Mr Ng in suggesting the DPO failed to properly investigate whether the EC had been varied and extended to 3 March 2016 newly relied on the 28/8/10 1^st Email in C’s II Subs (see paragraph 110(b) above) that was not referred to in the Perfected Grounds in C’s I Subs. But the Transcript showed that this email had been considered in the course of the cross-examination of C at the Trial:^[208]

“……

Q: So all the – actually, all the emails and letters I have just mentioned was sent more than six months prior to your expiry of the initial term and were – they were not sent in exercise of [D’s] option to renew and do not constitute any effective notice of renewal. So, in this connection, referring to …

COURT: You agree or not agree?

A. I disagree.

……

Q. So, even with the C-63(14) [ie 28/8/10 1^st Email] and (15) [ie 28/8/10 Letter], the letters from Ronald [ie Lim], but we still do not provide any mutually agreed terms.

A. Yes, Ronald [ie Lim] …

Q. Do you agree?

A. “Mutually agreed terms”? Yes, I think all are very clear that this C-63(15) [iw 28/8/10 Letter] was given by hand in the office, Ronald [ie Lim] gave it to me and he even double up with another attachment, as well, in email.

Q. Attachment in the email but …

A. I think so, yes. I – that’s as far as I can recall. He gave it …

Q. … (inaudible) … cannot find …

A. … to me, this one in the office, this C-63(15) [ie 28/8/10 Letter] and then he …

Q. You mean C-63(15) [ie 28/8/10 Letter] is the attachment of C-63(14) [ie 28/810 1^st Email]?

A. I’m not sure but I think he – but he gave me one in the office but he might have given me an attachment, as well, because he always do it double.

Q. Well I cannot find any attachment of C-63(14) [ie 28/8/10 1^st Email], actually.

A. So it could be – as far as I remember, it’s by hand but, if it’s by post or by what, I collected from him in the office.

Q. But, anyway, we cannot find any documents that mutually agreed or any renewal contract for your contract renewal, right? Do you agree?

A. I disagree. All these are documents to me. They have actioned it, as far as I’m concerned. It’s just to ask me to go and sign; yes, they did not ask me to go there and sign that contract.

COURT: “They did not ask me to go and sign the contract”, right?

A. They did not … (indistinct) to go to the office and sign the contract.

COURT: Yes, so you did not sign anything to …

A. I did not sign the renewal contract.

COURT: Can you please let me finish, first?

A. Yes.

COURT: So you did not sign anything to effect the contract renewal as alleged by you; am I correct to say this?

A. Yes.

COURT: And at no time anyone asked you to go to the office and sign anything; am I right to say this?

A. Yes.

……” (my emphasis)

114.  In C’s II Subs and at the NOM Hearing, Mr Ng submitted that the 28/8/10 Letter was attached to the 28/8/10 1^st Email. But from the Transcript seen above, C under cross-examination was in fact not sure whether the 28/8/10 Letter was attached to the 28/8/10 1^st Email. For such reason (ie the uncertainty of the attachment) and also because the 28/8/10 Letter was on D’s letterhead, even C’s own case came to rely more on the 28/8/10 Letter rather than the 28/8/10 1^st Email. But that did not mean there was no proper investigation of the 28/8/10 1^st Email. On the contrary, I find there had been sufficient and proper investigation of the document. In any event, the 28/8/10 1^st Email did not take C’s case further than the Contract Renewal Documents, and the DPO had investigated those documents and found they did not establish the EC had been varied/extended to 3 March 2016 because the applicable contractual framework for renewal of the EC had not been complied with (ie the Framework Non-Compliance Finding).^[209]

115.  As Mr Chain submitted (and I agree), Ground B would not even be potentially viable unless C could overcome the Framework Non-Compliance Finding. Whilst Mr Ng agreed the DPO did consider the Contract Renewal Documents, he argued in C’s II Subs that she failed to properly investigate those contemporaneous documents and the 28/8/10 1^st Email by wrongly putting emphasis on “form” rather than “substance”, and such “fatally” or “fundamentally” flawed approach resulted in an injustice in that a fair and proper determination of C’s claim could not be attained. But Mr Chain disagreed, saying that the very nature of such complaint betrayed the true nature of C’s appeal, ie it was in fact an appeal against factual findings dressed up as an appeal on law.

116.  Mr Ng raised a number of arguments in support of his contention in the above paragraph. First, Mr Ng argued the DPO’s erroneous emphasis on “form” rather than “substance” (when she ought but failed to ensure “substance” would prevail over “form”) was seen in various parts of the DPO Reasons, particularly where she twice referred to “rules and procedures”^[210] and also referred to “procedures or formalities”,^[211] “necessary procedures for such renewal”,^[212] “terms and procedures”^[213] and the 2009 COS.^[214] Secondly, Mr Ng argued that the DPO’s process of reasoning was tainted by her erroneous “form” over “substance” approach which led her to conduct brief/superficial analysis of the Contract Renewal Documents and the 28/8/10 1^st Email that fell short of the requisite standard for her duty to investigate. He complained the DPO Reasons omitted references to important parts of the 27/8/10 Email,^[215] the 28/8/10 Letter,^[216] the 28/8/10 2^nd Email^[217] and the 8/11/10 Letter.^[218]

117.  Thirdly, Mr Ng argued the DPO’s wrong approach in putting “form” over “substance” led her to wrong conclusions:

(a)	the DPO wrongly concluded that none of the Contract Renewal Documents displaced the “rule and procedures” provided for in the EC[219] when the 27/8/10 Email expressly stated that the renewal of the EC would occur even in the event D “did not give prior notice of renewal” and “notwithstanding any official instructions to [C] to the contrary”;
(b)	the DPO wrongly relied on the 2009 COS (which provided that D would give notice to the employee regarding renewal “one month prior to the Expiry Date”)[220] when the 27/8/10 Email expressly provided the renewal of the EC would occur even in the event that D “did not give prior notice of renewal” and “notwithstanding any official instructions to [C] to the contrary”, and the DPO’s conclusion that the “question of renewal had not even properly arisen at the time that the emails and letters were issued”[221] suffered from the same “fatal” flaw;
(c)	the DPO wrongly concluded that the contemporaneous Contract Renewal Documents merely constituted a “recommendation” by D’s then COO and/or D’s then GMT, and it was necessary for such recommendation to be considered and “formalized” in accordance with the necessary “procedures”[222] despite clear evidence to the contrary in those documents.

118.  It was obvious from the above that the “form” over “substance” argument was put forward to counter the Framework Non-Compliance Finding. However, if the “rules and procedures”, “procedures or formalities”, “necessary procedures for such renewal”, “terms and procedures” and the requirements for contract renewal set out in the EC and the 2009 COS were part of the contractual framework between C and D that governed their contractual relationship (as found by the DPO), I find it difficult to see how the need to comply with these contractually applicable requirements that were contractually incorporated and binding on the parties would be a matter of “form” and not a matter of contractual “substance”. This was particularly so when, upon my rejection of Ground A, the DPO’s finding that the 2009 COS was incorporated as part of the contractual framework between C and D was unassailable. Consequently, given such contractual framework (that included clauses 3 and 12 of the EC and clause 2.2.4 (expiration of contractual term) of the 2009 COS) was contractually binding on C, I find that compliance with such contractual requirements that were mutually agreed by C and D was a matter of “substance” and not a matter of mere “form”. Indeed, the DPO had carefully considered the parties’ respective stance and the aforesaid provisions of the EC and the 2009 COS under the contractual framework between C and D, and found C’s claimed renewal of the EC had not been complied with the relevant agreed requirements, ie (a) the option of renewal was at D’s discretion, (b) notice of renewal (if any) was to be given by D to C in writing “one (01) month prior to the Expiry Date” of the EC, (c) any renewal would be on “mutually agreed terms and conditions” with C and D having “signed (on a binding and final basis) documentation containing the terms and conditions applying to the renewed term on or before the Expiry Date”,^[223] and (d) when C gave evidence he confirmed there was no document that complied with clause 2.2.4 of the 2009 COS to evidence contract renewal (see paragraph 113 above and paragraph 124 below). In my view, it could not be said that the DPO failed to properly consider and/or investigate these matters. Mr Ng had no answer except to reiterate that the promises by D’s then COO and/or D’s GMT to C in the Contract Renewal Documents and the 28/8/10 1^st Email that the EC would have extended to 3 March 2016 was the “substance” that would trump the “form” of the requirements in the EC and the 2009 COS. I disagree the “form” over “substance” argument would trump the Framework Non-Compliance Finding that had been thoroughly discussed, analysed and concluded in the DPO Reasons (see paragraph 27(f)-(j) above).

119.  This nicely brings me to the No Authority Finding (ie the DPO’s finding that as a matter of fact the alleged renewal of the EC had not been approved by D’s relevant personnel/department with the authority to do so), which Mr Chain submitted was a standalone basis to uphold the DPO’s conclusion that there was no renewal of the EC, and thus also a standalone justification for C’s claims to be dismissed.^[224] In C’s I/II Subs (including the Perfected Grounds and/or Grounds A-E), C did not raise challenge against the No Authority Finding (see paragraph 73 above), and I agree with Mr Chain this meant that even if (which D denied) there were any merit to any of C’s arguments on appeal, say, Ground B, the inevitable conclusion/outcome remained that the EC was not validly renewed for lack of authority, and C’s appeal would therefore fail in limine and fell to be dismissed.

120.  Mr Ng disagreed, saying that although the DPO found some “rules and procedures” had to be followed, she did not make any No Authority Finding that D’s then COO and/or D’s then GMT did not have authority to make the promises in the Contract Renewal Documents to vary and extend the EC to 3 March 2016. Upon careful consideration of the DPO Reasons, I am unable to accept such blinkered view of the DPO Reasons.

121.  To properly understand the No Authority Finding, it would be useful to start with the parties’ respective pleas. C and D pleaded as follows:

(a)

D pleaded that C was or ought to have been aware that the decision-making power to renew an employee’s contract vested in the Human Resources Department, the Finance Department and the Senior Management, and the Flight Operations Department (including D’s then GMT Stewart) could and only did make recommendation.[225] On the other hand, C denied D’s plea and complained that (i) D failed/feared/refused to respond to C’s pleaded case, (ii) in respect of the Flight Operations Department, D’s then COO Lim was the then COO of all departments and not just the Flight Operations Department, and was senior management having the highest authority except Vice-President Sun and President Yang. C also claimed it was a lie for the defendant to assert that the Finance Department also had final say in contract renewal, and in fact D’s statement dated 9 September 2011 did not assert so. C averred that since 2011 D’s then COO was the Senior Management who had final say, and “his notice could ONLY be construed as notice for [C’s] Said Contract renewal. Whatever notice (which was not forth coming) to the contrary, by HR or Finance, who were the subordinates of the then COO, would have no effect and thus void, for lack of jurisdiction and/or authority”. [226] In short, C claimed D’s then COO Lim had actual and absolute authority to renew the EC.

(b)

D pleaded that insofar as the Contract Renewal Documents were concerned, (i) Lim (or other staff of the Flight Operations Department such as Stewart) had no actual authority to enter into any agreement on behalf of D to renew C’s EC as any renewal of employment contracts had to be approved by the Human Resources Department, the Finance Department and the Senior Management, and only the Human Resources Department might give notices and/or issue documentation in respect of employment-related matters (as evident from the fact that the EC was issued and signed by D’s Human Resources Department); (ii) in any event Lim in the 27/8/10 Email merely stated D would be responsible for affirming the renewal of the EC, but the terms and conditions of any alleged renewal of the EC were not discussed let alone agreed upon by such email, so there was no mutually agreed and signed documentation by C and D on binding/final basis that contained the terms and conditions applicable to any alleged renewal of the EC (as required under the 2009 COS); (iii) C was not entitled to rely on any alleged apparent authority of Lim (or other staff of the Flight Operations Department such as Stewart) (which D denied) to enter into any agreement on behalf of D to renew the EC as all along C had knowledge of (1) the lack of actual authority of Lim (or other staff from the Flight Operations Department such as Stewart) to enter into / agree upon any renewal of employment contract, (2) the requirement that renewal of employment contract had to be approved and authorised by D’s Human Resources Department, the Finance Department and the Senior Management, (3) the requirements to renew the EC that were set out in the 2008 COS and/or the 2009 COS, and/or (4) under D’s policy and practice an employment contract with D could not be renewed by email.[227] On the other hand, C pleaded that D avoided a direct reply or proper rebuttal to P’s pleaded case even though it well knew the duties, responsibilities, jurisdiction, powers etc of D’s then COO, so there could be no question over his overwhelming and specific authority to renew the employment contract of any management pilot or any staff of any department. It was for the Human Resources Department and the Finance Department to report to the then COO and to follow the then COO’s orders/instructions/notices on C’s contract renewal, and any disobedience would be insubordination on the part of the Human Resources, the Finance and the Flight Operations Departments, D’s then (Acting) DFO Chow and/or Vice-President Sun, but C had no responsibility to report their insubordination (if any). It was also pleaded that the Human Resources and Finance Departments had no say in C’s contract renewal and had no credible input to D’s then COO Lim as to why C’s EC should not be renewed, and if D’s then GMT Stewart had no say too, then D’s then (Acting) CFO would also have no say as his role was that of a “processor/facilitator/ initiator”. Further, none of the successors of D’s then COO Lim contradicted Lim’s notices/ orders/instructions pertaining to C’s EC. Although other personnel of the Senior Management might in the absence of D’s then COO Lim assist him on non-accountable executive duties, D’s then (Acting) DFO did not have management status to initiate or overrule the orders/instructions/notices of D’s then COO and subsequent COOs, so D was liable to pay damages for breach of employment contract so long as C did not receive any new notice from D’s then or current COO.[228] In short, C averred D’s then COO Lim had actual and absolute authority to renew the EC.

122.  At the Trial, Thong adopted and confirmed D’s pleaded case:^[229]

“……

A. I agree. I accept all [D’s] statements.

Q. Have you have a chance to read this one before – all these statements before you come to court, this morning?

A. Yes, I have read them all but not this morning, but last Friday.

Q. Can you confirm all contents of which are true and accurate?

A. (Punti) …

Q. And to …

……

Q. Adopt it as part of the evidence in this case?

A. I adopt them; agree.

……

Q. Okay. And then, thereafter, 2008, there was Ronald Lim as COO; is it correct?

A. Correct.

……

COURT: Of the whole company or of any particular department?

A. Generally speaking, the COO is in charge of all operations, including ground operations, ground operations including things like service delivery department, which are the …

COURT: “Service” or …

A. Service delivery department, which includes the cabin service.

COURT: Okay. Yes.

A. All right. And engineering, as well. Operations, all operations, in fact.

COURT: And recruitment?

A. Recruitment, no directly. The recruitment for pilots will be under the flight ops, director …

COURT: “Under …”

A. … of flight operations.

……

COURT: So you are saying that Ronald Lim, as the COO, was in charge of the flight operation department?

CLAIMANT: Yes.

Q. Is it correct, Mr Thong?

A. Not that I know of. I mean, the chief operations officer is in charge of a number of departments, okay. He is not solely responsible for the flight ops. Flight ops is one of the operations; there are a lot of operations within the airline. You have got the service delivery operations, you have got ground operations, and he’s given in charge of the integrated operations control centre which is there to tell where the aircraft is …

…

A. Okay. I think the COO is there to be in charge of a lot of operations. He is not solely – yes, I agree the flight operations is also one of the departments under his umbrella. That I agree totally but he’s not solely responsible for the flight operations department alone. And, if the flight operations department wants a recruitment process, it is up to the flight operations department to come up with a reason. Okay? Obviously, the approval process will also go to the COO.

COURT: No, let me understand your procedures. You are saying that the COO is not responsible for the recruitment, it will be the director of flight operation …

A. Correct.

COURT: … to handle the recruitment?

A. Correct.

COURT: And then, from your last answer, you’re saying that the flight operation department would give a recommendation?

A. Correct.

COURT: To whom?

A. First of all, the flight operations department will know which pilot to recruit, okay, …

COURT: Yes.

A. They will write letters, you know, they have friends, they’ve got …

COURT: Yes.

A. … the people they know. After that, the DFO, director of flight ops, will make a case to the human resources department.

COURT: Okay.

A. Human resources department will look at the fleet configuration, how many aircraft we have, all right, whether this pilot recommended will fit the fleet. This is the job of the HR department. Once HR department has done that, they will go straight to a senior management who is in charge of the operation, and that’s the vice-president.

……

COURT: … of the operation. So who is this guy …

A. Capt. Sun.

COURT: “Capt. Sun”.

A. Sun Jianfeng. ……

……

COURT: And he will make the final decision?

A. No, he will go to the finance department to see whether the recruitment will fit the recruitment budget of that year.

COURT: Yes.

A. If the finance department gives it a go ahead, then HR will start the recruitment procedure. So that’s the general procedure what is laid down in the company. It’s, basically, whichever department who wants to recruit somebody, they make a recommendation to HR; HR will then look at various factors. Once they have decided “Yes”, then they will go to the vice-president who is responsible. It’s like finance; they will go to the vice-president, finance. Once that’s done, then the recruitment will start within the HR department.

COURT: Does this procedure apply to any renewal of contract?

A. The procedure, basically, will apply to all staff, not just pilots.

COURT: Also apply to renewal of any contract?

A. Yes. Yes, definitely. Definitely. Especially, with term contracts.

……”

The aforesaid recruitment process based on recommendation by the relevant department (eg recommendation by the DFO of the Flight Operations Department for recruitment of pilot or renewal of pilot contract) as explained by Thong was consistent with the VPN approval system as evidenced by the VPN approval form signed by D’s then (Acting) DFO Chow on 29 December 2010, raising a motion for “non-renewal of contract for [C] which was due in March 2011”, countersigned by D’s Vice-President Sun who agreed with the motion on 31 December 2010 and further countersigned by Stanley Kan of D’s Human Resources Department (see paragraphs 27(i) and 29 above) on 3 January 2011 with instructions to distribute to Becky Li of D’s Human Resources Department for processing the agreed motion.^[230] As noted by the DPO, both Goh (ie C’s witness) and Thong confirmed the existence of the VPN approval system when they gave evidence, and even C (who did not raise any rebuttal evidence against the aforesaid VPN approval form) confirmed during the Trial that he would not challenge the authenticity of such document.^[231] The existence of an approval system was also bolstered by C’s own email dated 16 August 2010 to Thong stating that “…… I would use my PR skill to bring in acting management pilots (6 month tenure) from our line pilot pool to work extra office hours …… in their off days …… And if they fit the bill, recommendation to the President through [Thong] may be made to allow them to take over certain existing management staff if necessary” (my emphasis).^[232]

123.  Likewise, C also articulated and repeated his pleaded stance at the Trial as follows:^[233]

“…… as I said, C50, the duties and responsibility of the COO overrule all other authorities. The president and the vice-president has got no authority over the COO on any matter that is under his jurisdiction. The only time, as I stated also clearly in C50 that senior management only I think it’s liaise or communicate is stated there with each other. They have no overriding power of each other, especially so if you are COO or CEO. None of the V-Ps will have any power to override an accountable officer’s decision or authority on any matter that is within his jurisdiction. The only time that COO can be removed is of misconduct and by the board of the senior management. They will have to come up a decision whether he is guilty or not guilty. If he’s guilty, they can terminate him or demote him or whatever. So, other than that, the president has got no power whatsoever over the COO on matters that all involved in the operation, administration manual A, B, C, D, E and all the because you have or condition of service or whatever, it’s all under the COO. Every department, finance, administration, all have to report to the COO. The chief executive officer is the same as the chief operating officer for [D]. The CEO – they do not have a COO in [HKE]; they have a CEO in [HKE]. They don’t have a COO. So, in [D], you have a COO and do not have a CEO and these are accountable officers for all the airline operations. So, whether Mr Thong was a senior management, he would have no say whatsoever if the COO has already made a statement, made an instruction, made a recommendation. All this senior management has got no say.”

124.  The DPO Reasons showed the DPO was keenly aware of D’s and C’s pleaded case and evidence, which she respectively summarised in paragraphs 23-24 and 33 of the DPO Reasons. As explained in paragraph 118 above, the DPO then carefully considered and weighed the Contract Renewal Documents against the contractual framework between C and D (including clauses 3 and 12 of the EC and clause 2.2.4 of the 2009 COS),^[234] and went on to find (a) the rules and procedures contained in the EC remained valid and binding on the parties and (b) none of the Contract Renewal Documents on a reasonable construction displaced those rules and procedures or amounted to any renewal of the EC.^[235] Plainly, the DPO was well aware of C’s case that “COO Ronal Lim had the absolute right of recruitment and even Chairman and/or Vice-President could have no right to intervene”, and in coming to the finding in (a)-(b) above she preferred D’s case/evidence and rejected C’s case/evidence that D’s then COO Lim had authority to bind D to renewal of C’s EC to 3 March 2016 despite absence of approvals of other departments (see paragraph below).^[236] In my view, there was no basis to suggest the DPO failed to properly investigate the issue and/or consider the evidence. Her factual findings were unassailable on point of law, and she had given justifiable basis for finding the Contract Renewal Documents (which on their face did not appear to be mutually agreed and signed (on a binding and final basis) documentation that contained the already agreed terms and conditions of a renewed employment contract as required under clause 3 of the EC and clause 2.2.4 of the 2009 COS) as constituting only recommendation for the EC to be renewed (ie the Framework Non-Compliance Finding).^[237]

125.  In my view, the DPO plainly made the No Authority Finding. As D’s II Subs contended (and I agree), the No Authority Finding was plain from a combination of the following factual findings which would not have admitted any other conclusion:

(a)	For reasons explained in paragraphs 47-49 of the DPO Reasons, the DPO noted the contents of the Contract Renewal Documents suggested that renewal of the EC was prospective in nature, so she held that the makers thereof were well aware of the necessary procedures for renewal of employment contracts, and they knew it was for D’s Human Resources Department to handle the renewal matter upon the recommendations made by them in accordance with agreed terms.[238]
(b)	The DPO accepted D’s evidence that the Contract Renewal Documents would, at best, constitute a recommendation by Lim and/or Stewart, and such recommendation had to be considered and formalised in accordance with the necessary procedures, ie to be approved through the VPN.[239]
(c)	The DPO accepted that one of the considerations on contract renewal would be the views of the Human Resources and the Finance Departments[240] (which was actually Thong’s evidence and his testimony explained why those 2 departments were involved – see paragraph 122 above).
(d)	The DPO recounted the evidence on the VPN approval system (see paragraph 122 above) that would require follow-up by the Human Resources Department,[241] and found C’s claim that D’s then COO had the absolute right to decide whether or not to renew any contract or not was “clearly without factual basis”.[242]

126.  In my view, (a) the DPO did make the No Authority Finding, (b) such finding was unassailable on point of law, and (c) there was no appeal against the No Authority Finding. That being the case, notwithstanding C’s complaints about the DPO’s investigation process, the No Authority Finding would be a overarching answer to Ground B, ie Lim/Stewart were to their knowledge and to C’s knowledge not duly authorised on behalf of D as being capable of validly agreeing to renewal of C’s EC, and Ground B must therefore fail.

127.  Apart from the Framework Non-Compliance and No Authority Findings, there were also other miscellaneous answers to Mr Ng’s “form” over “substance” complaint. First, given the unassailability of the Framework Non-Compliance and No Authority Findings, there was no merit in the complaint that the DPO referred to parts of the Contract Renewal Documents in the DPO Reasons without quoting the extracts therefrom that Mr Ng relied on and set out in paragraph 110(a)-(d) above. I have set out in paragraphs 27-28 of Vermeerbergen Peter Alfred (see also paragraph 53 of Fung Tsun Tong) the relevant legal principles on the duty of the Tribunal to give reasons for decision, which I rely on but do not repeat here. Suffice to state here that although there is a general requirement that a tribunal of fact must give adequate reasons for its decision, this is a fact-sensitive question to be approached sensibly, and all that was required of the tribunal of fact was to show that issues that arise for serious consideration have been considered and why the tribunal has come to its decision without need to address every single issue. Indeed, the reasons may not require great elaboration and they may be brief.^[243] Here, the DPO was well aware of C’s and D’s respective case, and she was alive to the Contract Renewal Documents, and had given adequate reasons for coming to the Framework Non-Compliance and No Authority Findings. In light of such findings, the DPO held that the Contract Renewal Documents did not amount to agreement for renewal of the EC or effective notice of renewal (ie the No Agreement Finding), and hence Lim’s/Stewart’s assertions in the Contract Renewal Documents were mere “recommendation” and would not have the significance Mr Ng attached to them to justify particular mention in the DPO Reasons. There was no merit to C’s complaints that the DPO failed to properly investigate the issue of whether the EC had been renewed and extended to 3 March 2016, and that such failure resulted in injustice in that a fair and proper determination of C’s claim could not be attained.

128.  Secondly, on the question whether there was any agreement made between C and D to renew the EC, the DPO noted C’s claim that there were 2 oral agreements made by Lim/Stewart to vary and renew the EC to 3 March 2016 as evidenced by the Contract Renew Documents.^[244] In light of the Framework Non-Compliance Finding, such alleged oral agreements flied against (a) clause 3 of the EC that required any renewal to be notified to C in writing before the expiry of the EC, and (b) clause 2.2.4 of the 2009 COS that required (i) the renewal notice in writing be given by D to C 1 month prior to the expiry of the EC and (ii) the terms and conditions applicable to the renewed term be mutually agreed and signed (on a binding and final basis) documentation by C and D on/before the expiry date of the EC. I agree with the DPO that these contractual provisions requiring renewal of the EC to be processed by written notice and by written/signed agreed terms and conditions for the renewed term were not discrepant, and they should be given effect.^[245]

129.  This was borne out by Lord Sumption JSC’s observations in MWB Business Exchange Centres Ltd v Rock Advertising Ltd.^[246] That case concerned a no oral modification clause that provided that “…… [all] variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect” (page 125). I do not think this authority could be brushed aside, as Mr Ng tried to do, by saying there was not any no oral modification clause in the present case. Lord Sumption JSC of the English Supreme Court opined that where parties agreed to specified formalities (eg certain matters – variation in that case – to be set out in writing and signed by the parties), “the law should and does give effect to a contractual provision requiring specified formalities to be observed” (page 127). He explained that whilst “[party] autonomy operated up to the point when the contract is made, but thereafter only to the extent that the contract allows” (page 127). This reinforced the DPO’s findings that the alleged oral agreements as well as the Contract Renewal Documents did not amount to any definitive agreement by the parties to renew the EC, and that there was no mutually agreed and signed (on a biding and final basis) documentation by D and C containing the agreed terms and conditions that applied to any alleged renewal of the EC as required under clause 2.2.4 of the 2009 COS (which provision was incorporated by clause 12 of the EC), and no effective notice of renewal in writing before expiry of the EC as required under clause 3 thereof. In my view, there was ample basis to support the No Agreement Finding made by the DPO, which I find justified.

130.  I now turn to Mr Ng’s 2^nd “mutation” (so described by Mr Chain) to Ground B. In C’s I Subs, C complained that the DPO further erred in law in failing to properly investigate whether the Contract Renewal Documents constituted an estoppel whereby D was estopped from denying the EC had been renewed for a fixed term of 5 years upon the expiry thereof. It was unclear from C’s I Subs what species of estoppel was evoked. Specification came only in C’s II Subs which claimed that the common assumption shared between C and D (through D’s then COO and/or D’s then GMT and/or D’s then (Acting) DFO) that the EC would be renewed and extended to 3 March 2016 gave rise to estoppel by convention.

131.  D had 2 answers to this. First, D’s I/II Subs pointed out that estoppel was not pleaded or raised at the Trial, and it should not be raised for the 1^st time on appeal (see paragraphs 40-50 above). Secondly, there was no dispute that “an estoppel by convention is concerned with a common assumption relied upon as the basis upon which the persons sharing such assumptions enter into a transaction, with the word “transaction” to be understood here in the broad sense of the parties engaging in acts or omissions affecting their mutual legal relationship”,^[247] and that the matter assumed must be clear and unequivocal, ie “the clarity required will seldom fall below what is unequivocal for the relevant purpose”, and “the extent to which the importance of clear and unequivocal statements is reduced in cases of estoppel by convention is probably small”.^[248] Here, C relied on the Contract Renewal Documents to raise estoppel by convention, but in light of the No Agreement Finding, the Framework Non-Compliance Finding and the No Authority Finding, the DPO made factual findings that the Contract Renewal Documents amounted to “recommendation” only (and I have found that the DPO was justified in coming to such finding). Such finding precluded any clear and/or unequivocal basis/consensus to support the common assumption necessary for giving rise to an estoppel by convention.

132.  I agree with D’s position in the above paragraph, and further agree with Mr Chain that C’s reliance on estoppel would not add anything further to the analysis.

133.  Turning to Mr Ng’s 3^rd “mutation” (so described by Mr Chain) to Ground B, at the NOM Hearing Mr Ng expanded the basis of Ground B by submitting that even if the 2009 COS was incorporated as part of the contractual framework binding on C and D and notwithstanding the Framework Non-Compliance Finding, there was an enforceable collateral contract that would trump the specified formalities in clause 3 of the EC and clause 2.2.4 of the 2009 COS, but the DPO failed to carry out proper investigation of pre-contractual 23/1/08 Email referred to in paragraph below that would have led to the conclusion of the existence of a collateral contract, and the DPO thereby deprived herself of the opportunity for considering the impact of such pre-contractual email on the EC.

134.  At the NOM Hearing, Mr Ng relied on what he described as an important contemporaneous document that clearly showed D promised C his EC would be renewed for a term of 5 years, which showed such promise was given to C not only during the course of his employment with D (by the Contract Renewal Documents) but also before C commenced employment with D. The email dated 23 January 2008 (ie just before C left his then employer to join D) from D’s then GMT Stewart to C stated as follows (“23/1/08 Email”):^[249]

“Hi David,

With reference to my earlier promise to you when we last met, I had spoken to our management to get you into our airline for the long term. They share my same offer to you.

Thus all pay and benefit would be equal to or better than your current position in Alteon.

We would offer you the position of [MTP] with a monthly salary of HK$120,000.

It is academic that we initially set contract terms at 3 years which would be longer to cover the line training and line flying. This is in line for everyone else and we would have the next renewal of contracts to 5 years for you at least. Thus you would be getting the same treatment as Alteon whereby all your fellow colleagues work past the age of 70.

You are especially valuable to us as you are conversant in Chinese and English language.

……” (my emphasis)

135.  Mr Ng pointed out that the 23/1/08 Email was expressly referred to in paragraph 1 of C’s revised statement of claim dated 31 May 2017:^[250]

“[C] joined [D] on 04^th March 2008 as per HKA/[D] employment said Contract (EX C1, Exhibit Contract 1) from his previous company Alteon Flight Training in Incheon, Korean, where [C] used to train airline pilots including those from HKA/[D] …… [C] was given verbal and email (EX RS1, Richard Stewart 1) promises by the then [D’s GMT] (EX JT, Job Title) [Stewart], that [D] would give [C] line flying and promotional opportunities to age 65 and instructional and/or managerial duties past 65. [C] was to be offered the position of [MTP] with remuneration of HKD 120,000 a month plus allowances effective 04^th March 2008 with all attendant benefits and seniority number so that it equaled [C’s] then remuneration and seniority in [C’s] then Company, Alteon. As a pilot instructor [C’s] former Company Alteon, with good benefits, etc, many of [C’s] then fellow colleagues worked past age 70. With long term employment, many had taken up Permanent Residency in South Korea. Thus, on these said promises, [C] left Alteon (EX A) to join [D]. This was further confirmed later by the then [D] [COO] [Lim] (both verbally and in email EX RL1, Ronal Lim 1), who had asked [C] to stay with [D] on a permanent basis.

……”

136.  Mr Ng submitted that the 23/1/08 Email was important because it showed (a) the promise therein that C’s employment contract with D would be renewed for 5 years was made by D since its then GMT Stewart stated therein he had “spoken to our management” (presumably D’s Senior Management^[251]) “to get [C] into [D] for the long term”, (b) D promised C that his employment contract would be renewed for 5 years upon expiry even before he commenced employment with D in order to “lure C to join D from Alteon”, and (c) D relied on such promise to leave his then employer Alteon to join D. On such basis, it was said it would be inequitable and unjust for D to go back on such binding promise.

137.  Mr Ng complained that the DPO failed to investigate or properly investigate the important and contemporaneous 23/1/08 Email, which deprived her of the opportunity of considering the impact of such pre-contractual email on C’s employment contract, and had she done so, she would have found (a) D’s promise in the 23/1/08 Email to C was clear and unequivocal, (b) D was bound by its promise, and (c) C acted in reliance of D’s promise to leave Alteon to commence employment with D, so there was reliance and detriment on the part of C in acting on D’s promise in the 23/1/08 Email, which amounted to an enforceable collateral contract ancillary to but independent of the EC, which therefore had been revised and renewed to 3 March 2016.

138.  But as Mr Ng rightly conceded, C’s allegation that the DPO failed to consider the pre-contractual 23/1/08 Email and to investigate or properly investigate whether it would amount to a collateral contract binding on D to renew the EC until 3 March 2016 was not raised as a Perfected Ground in C’s I Subs, and was not touched upon in C’s II Subs. Indeed, Mr Ng did not even suggest the issue of possible collateral contract was a point taken in the pleadings, raised at the Trial and/or canvassed in the 1^st, 3^rd and 4^th Grounds. There was also no case on alleged misrepresentation based on the 23/1/08 Email whether before the DPO or on appeal, and Mr Ng did not rely on any alleged misrepresentation at the NOM Hearing.

139.  But Mr Ng suggested that C’s allegation of a pre-contractual collateral contract based on the 23/1/08 Email was subsumed in C’s grounds of appeal, but having conceded that such allegation was not in C’s I/II Subs, he did not identify such allegations were subsumed under which part(s) of the 1^st, 3^rd and 4^th Grounds. In my view, this was a fresh point that was not even raised as a point of law even at the stage of the Leave Application. In the circumstances, I am unable to see how C could be allowed to take a fresh point on appeal when no leave was granted by this court for such point to be taken in the Leave Decision.

140.  More importantly, the issue of possible collateral contract based on the 23/1/08 Email was a fact-sensitive matter. In my view, raising this point for the 1^st time on appeal fell foul of “state of the evidence” bar under the Flywin doctrine. If C had taken the point at the Trial, D could have adduced evidence to counter such point or at least cross-examined C on the pre-contractual communications and in greater depth on his contentions (eg the allegation that without the promise in the 23/1/08 Email he would not have signed the EC that eventually provided differently, ie that renewal of the EC was subject to the requirements in clause 3 thereof and paragraph 1(f) of the 2008 COS), and/or explored in greater detail C’s understanding and the effect of the entire agreement clause in clause 15 of the EC. Such concern was exacerbated by section 35(2) of the LTO that barred the CFI from receiving any further evidence on appeal from the Tribunal. In my view, it could not be said that there was no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to D if the point had been taken at the Trial.

141.  Although surprised by this point taken by Mr Ng at the NOM Hearing, Mr Chain quickly rallied to inform this court the 23/1/08 Email was actually explored and investigated during cross-examination of C in the course of the Trial:^[252]

“COURT: Is that your case, that you’re saying that, before this signing of the contract with [D], they have promised you to renew your contract upon expiry of the contract?

A. Yes.

Q. So you got this document, right?

A. Yes.

Q. So this mail – email is from Stewart, Richard Stewart, using his personal email address to you, dated on 23 January 2008?

A. Yes.

Q. But it’s actually formed before your contract was entered into?

A. Yes.

COURT: So it doesn’t support your case that there has been some prior agreement before the signing of the contract?

A. This is the prior agreement to induce me to sign the contract. Without this statement, I would not have signed the contract.

COURT: Can you please turn to C-5(4)?

A. “C-5(4)”. Yes.

COURT: Can you see clause 15, please?

A. “Clause one-five”?

COURT: One-five.

A. Yes.

COURT: I believe you would know what’s the meaning of that because you seems to have legal training.

A. “… right to alter the clause … contains the entire agreement between the company and yourself …”, yes, I agree and I just want to – any ambiguity there is this one is to induce me to sign the contract. But, if they put down there, it says, “We disregard inducement, we don’t nothing”, then this contract stands.

COURT: Thank you.” (my emphasis)

142.  It was obvious that questions about the 23/1/08 Email were put to C under cross-examination, and that the DPO fairly took C to the entire agreement clause in the EC (ie clause 15) for his comment. C agreed that as the EC provided “[we] disregard inducement, we don’t nothing”, “then this contract [ie the EC] stands”, which probably explained why C did not raise the issue of collateral contract in his pleadings, further pursue the same at the Trial and/or include the same in the 1^st, 3^rd and 4^th Grounds as well as in C’s I/II Subs. It also explained why the issues of whether there was or was not any pre-contractual collateral contract, and if so, whether the “entire agreement” clause in clause 15 of the EC rendered extrinsic evidence of such inadmissible to denude the effect of any such collateral contract was not canvassed in the DPO Reasons. There was no finding by the DPO on the effect of clause 15 of the EC as C did not rely on pre-contractual collateral contract at the Trial. I am not satisfied that the DPO failed to adequately explore the 23/1/08 Email and the alleged pre-contractual collateral contract in light of the absence of C’s case on the subject.

143.  Mr Chain further submitted that in any event, even if C were allowed to raise on appeal the DPO’s alleged failure to investigate the 23/1/08 Email and hence also the issue of possible pre-contractual collateral contract (which D disagreed), clause 15 of the EC being an entire agreement clause provided a complete answer as it would bar reliance on the alleged pre-contractual collateral contract that contradicted the terms of the EC that provided for renewal of the EC at D’s discretion pursuant to the express requirements in clause 3 of the EC and clause 2.2.4 of the 2009 COS that was incorporated pursuant to clause 12 of the EC.

144.  Clause 15 of the EC provided as follows:

“15. Entire Agreement

This contract contains the entire agreement between [D] and yourself with regard to its subject matter. [D] reserves the right to alter the clauses of this contract subject to mutual agreement between both parties.”

145.  Mr Chain placed reliance on the following guidance on “entire agreement” clauses in Chitty on Contracts,^[253] and submitted that the “entire agreement” clause in clause 15 of the EC excluded the alleged collateral contract based on the 23/1/08 Email:

“The practice has developed of including in written agreements of a formal character an “entire agreement” clause, for example:

“This Agreement contains the entire and only agreement between the parties and supersedes all previous agreements between the parties respecting the subject matter hereof; each party acknowledges that in entering into this Agreement it has not relied on any representation or undertaking, whether oral or in writing, save such as are expressly incorporated herein.”

The purpose of such a clause is to achieve, by a somewhat roundabout route, the exclusion of liability for statements other than those set out in the written contract. The effect of the clause will necessarily depend upon its precise wording. It has been stated that an “entire agreement” clause operates “to denude what would otherwise constitute a collateral warranty of legal effect” rather than to render inadmissible extrinsic evidence to prove terms other than those in a written contract. However, the language of the clause may not be apt to exclude representations even if it excludes claims arising out of a collateral contract or warranty. It should also not prevent use of extrinsic evidence to ascertain the meaning of an express term in the contract. An entire agreement clause may be waived by a party who might otherwise have relied on it.” (my emphasis)

146.  Mr Ng did not cite any legal authorities on the effect of “entire agreement” clauses, but submitted the sample “entire agreement” clause set out in Chitty on Contracts was more elaborate and hence different from clause 15 of the EC. He suggested that clause 15 of the EC would not have the effect of denuding the alleged collateral warranty/ contract based on the 23/1/08 Email of legal effect. Whilst I accept that generally speaking and in the absence of any “entire agreement” clause, extrinsic evidence for establishing collateral contracts is an exception to the parol evidence rule,^[254] the inclusion of an “entire agreement” clause in the written contract changes the picture as such mutually agreed contractual provision must be given legal effect. Mr Ng had no answer when pressed on what clause 15 of the EC as mutually agreed between C and D would exclude if its terms, as Mr Ng suggested, would not exclude any representation, warranty and/or collateral contract. All Mr Ng said was that he could only say what clause 15 of the EC would not exclude, and went on to boldly assert that maybe such “entire agreement” clause would not exclude anything.

147.  Having carefully considered Mr Ng’s and Mr Chain’s submissions, I am unable to accept C’s / Mr Ng’s contentions. It is useful to first turn to the classic case on “entire agreement” clauses, ie Inntrepreneur Pub Co v East Crown Ltd.^[255] In that case, clause 14.1 of the agreement between the public house owner and the tenant read as follows (page32):

“14.1 Any variation of this Agreement which are agreed in correspondence shall be incorporated in this Agreement where that correspondence makes express reference to this Clause and the parties acknowledges that this Agreement (with the incorporation of any such variations) constitutes the entire Agreement between the parties.” (my emphasis)

The “entire agreement” clause in that case was a very simple one of “this Agreement …… constitutes the entire Agreement between the parties”. One of the issues before the court was whether such clause precluded the tenant from setting up an alleged collateral agreement, which turned on the true construction of the “entire agreement” clause (page 32).

148.  In that case, Lightman J explained the purpose of “entire agreement” clauses as follows (page 33):

“The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding, in the course of negotiations, some (chance) remark or statement (often long-forgotten or difficult to recall or explain) upon which to found a claim, such as the present, to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search, and the peril to the contracting parties posed by the need that may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that, accordingly, any promises or assurances made in the course of the negotiations (which, in the absence of such a clause, might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given effect in that document. The operation of the clause is not to render evidence of the collateral warranty inadmissible in evidence, as is suggested in Chitty on Contract (28th ed) vol 1 para 12-102; it is to denude what would otherwise constitute a collateral warranty of legal effect.”

149.  Further, as to the “entire agreement” clause in that case, Lightman J held as follows (page 33):

“…… In this case, the formula used is abbreviated to an acknowledgement by the parties that the agreement constitutes the entire agreement between them. That formula is, in my judgment, amply sufficient to constitute an agreement that the full contractual terms to which the parties agreed to bind themselves are to be found in the agreement and nowhere else. That can be the only purpose of the provision. This view is entirely in accord with the judgment of Mr John Chadwick QC (as he then was), sitting as a deputy High Court judge in McGrath v Shah (1987) 57 P&CR 452. An entire agreement provision does not preclude a claim in misrepresentation, for the denial of contractual force cannot affect the status of a statement as a misrepresentation. …… It seems to me, therefore, that clause 14.1 of the agreement provides in law a complete answer to any claim by Crown based upon the alleged collateral warranty.” (my emphasis)

In short, whilst the abbreviated “entire agreement” clause might not preclude a claim in misrepresentation, it was apt to exclude any collateral contract/warranty.

150.  Lightman J’s guidance have been adopted in a number of local cases, eg Edward Wong Finance Company Limited v Profit Making Investment Limited & ors,^[256] Wing Siu Co Ltd v Goldquest International Ltd (No 2),^[257] Natamon Protpakorn v Citibank NA,^[258] Po On Auto Accessory Company Limited v Grand Faith Holding Limited,^[259] Lucky Zone Holdings Limited v Winning Beauty Investments Limited & anor,^[260] AVC Property Development Company Limited v Joyful Grace Trading Limited & anor^[261] (see also China Jianxin Credit Services Limited v IR Resources Limited^[262]).

151.  In North Eastern Properties Ltd v Coleman & anor,^[263] the vendor and purchaser of land entered into 11 contracts, each of which contained a clause which stated: “This agreement contains the entire agreement between the parties”. The purchaser argued that the written contracts failed to include an agreed term of the same, ie that the vendor would pay the 2% finder’s fee on exchange, and so fell foul of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (page 2717). Briggs J of the English Court of Appeal, referring to Lightman J’s observations on “entire agreement” clauses in Inntrepreneur Pub Co (pages 2727-2728), agreed with Lightman J “that the normal reason for the inclusion of an entire agreement clause is to dispose of the risk that some collateral contract or additional terms may be discovered in the undergrowth of the parties’ negotiations”, and also found such “entire agreement” clause useful in ensuring the land contract would not accidently be construed as conditional upon other expressly agreed terms so as to render such land contract void under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (page 2728). Longmore LJ also said as follows (page 2734):

“82. The matter is put beyond all doubt, however, by the presence of clause 16.3 -- the entire contract clause. If the parties agree that the written contract is to be the entire contract, it is no business of the courts to tell them that they do not mean what they have said ……

83. It may well not be right to say, as Lightman J did in Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 LIoyd’s Rep 611, that the effect of the clause is to denude what would otherwise constitute a collateral warranty of legal effect unless one confines the concept of collateral warranty to a warranty in which the existence of the main contract does indeed depend on the collateral agreement; if (as in the present case) there is a collateral agreement supported by its own consideration and the contract sued upon is not conditional on compliance with the collateral agreement, that agreement will be enforceable in its own right.”^[264]

152.  In AIA Internatioinal Limited (formerly known as American International Assurance Company (Bermuda) Limited) v Shum Ka Wai & ors,^[265] upon termination of service of the defendant insurance agents (engaged under Career Representative’s Contracts) by written notice, the plaintiff insurance company sued for refund of certain monetary incentives or bonuses paid to the defendants (paragraphs 4-5). The defendants asserted that the purported termination was an act of repudiatory breach on the plaintiff’s part which they had not accepted, and they counterclaimed for damages for breach and specific performance (paragraph 7). The defendants further pleaded as follows:

“8. In Group A cases as well as in DCCJ 1688/13, each of the defendants pleads that prior to joining AIA, Marcus, a District Director of AIA, when luring Wing Ki and On Kee to join AIA and to bring with them the defendants as down-line agents, assured Wing Ki and On Kee that AIA would only terminate their service and that of their down-line agents for a sound reason (“Assurance”) and that the Assurance had the backing of Mr. Stewart Lee, a Vice President of AIA (“Stewart”). In his affirmation in support of the application, a Mr Chung of AIA denies that AIA would through any person give such assurance to a prospective agent.

9. In both groups of cases, all defendants plead that the Purported Termination was made with an ulterior motive and/or out of spite ……”

153.  There was an “entire contract” clause in each of the Career Representative’s Contracts which read “(t)his Agreement together with the Schedule of Commission constitutes the basis of the entire contract between the parties herein” (paragraph 14). DDJ D Ho (as he then was) referred to the long line of cases that followed Lightman J’s observations in Inntrepreneur Pub Co (paragraphs 21-22) (see also paragraph 148 above), and found they served a complete answer to the defendants’ reliance on the Assurance to bar the plaintiff from invoking clause 23(b) of the Career Representative’s Contracts that allowed for termination of the contracts without any reason by either party upon 15 days’ notice in writing (paragraph 23). The learned judge went on to say as follows:

“25. Nor do I find the absence of a clause expressly superseding all prior agreements would undermine the effectiveness of an entire contract clause. As I see it, the addition of such a clause may serve to ease a contracting party’s mind especially when there is any prior agreement inconsistent with the subsequent written contract, the lack of it would not ipso facto take away the force of the entire contract clause which expressly says the agreement constitutes (the basis of) the entire contract.

26. Indeed, if [counsel for the defendants] is right, Clause 22(a) [ie the entire contract clause] would make no commercial sense and defeat the whole purpose of inserting such a clause into the contract. As Lord Diplock observed in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201D:

“…if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.””

154.  In Rock Advertising Ltd cited by Mr Chain, clause 7.6 of the agreement provided that: “This licence sets out all of the terms as agreed between MWB and the licensee. No other representations or terms shall apply to form part of this licence ……” Lord Sumption JSC, citing Lightman J’s observations in Inntrepreneur Pub Co, said an entire agreement clause was “intended to achieve contractual certainty about the terms agreed, in the case of entire agreement clauses by nullifying prior collateral agreements relating to the same subject matter” (my emphasis), and went on to say as follows (pages 128-130):

“14. …… The true position is that if the collateral agreement is capable of operating as an independent agreement, and is supported by its own consideration, then most standard forms of entire agreement clause will not prevent its enforcement: see Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2007] L & TR 26, para 43 (CA) and North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715, paras 57 (Briggs J), 82–83 (Longmore LJ). But if the clause is relied upon as modifying what would otherwise be the effect of the agreement which contains it, the courts will apply it according to its terms and decline to give effect to the collateral agreement. As Longmore LJ observed in the North Eastern Properties Ltd case, at para 82:

“If the parties agree that the written contract is to be the entire contract, it is no business of the courts to tell them that they do not mean what they have said.”

…… Outside the domain, in some ways rather special, of contracts for the sale of land, in Deepak Fertilisers and Petrochemicals Corpn v ICI Chemicals & Polymers Ltd [1998] 2 Lloyd’s Rep 139, 168 (Rix J); [1999] 1 All ER (Comm) 69, para 34 (CA), both Rix J and the Court of Appeal treated the question as one of construction and gave effect to the clause according to its terms. Lightman J did the same in the Inntrepreneur case [2000] 2 Lloyd’s Rep 611. Since then, entire agreement clauses have been routinely applied: see Matchbet Ltd v Openbet Retail Ltd [2013] EWHC 3067 (Ch) at [112]; Mileform Ltd v Interserve Security Ltd [2013] EWHC 3386 (QB) at [93]-[101]; Moran Yacht & Ship Inc v Pisarev (The 4YOU) [2017] 1 All ER (Comm) 62, para 18 (CA); First Tower Trustees Ltd v CDS (Superstores International) Ltd [2017] 4 WLR 73, paras 17, 26; Adibe v National Westminster Bank plc [2017] EWHC 1655 (Ch) at [29]; Triple Point Technology Inc v PTT Public Co Ltd [2017] EWHC 2178 (TCC) at [68]; ZCCM Investments Holdings plc v Konkola Copper Mines plc [2017] EWHC 3288 (Comm) at [21].” (my emphasis)

155.  Plainly, the legal effect of the “entire agreement” clause in clause 15 of the EC is a matter of construction of the term,^[266] but in the context of the EC and in light of the aforesaid authorities, I have no hesitation in concluding that the “entire agreement” clause as worded in clause 15 of the EC was apt to denude any pre-contractual collateral contract/warranty of legal effect, which provided a complete answer to C’s contention of the DPO failed to properly investigate the 23/1/08 Email and the alleged pre-contractual collateral contract based on such email.

156.  In all the circumstances, there was no merit to Ground B. In any event, the DPO found that even if the EC were renewed, it would have been renewed on similar terms including a clause that allowed termination by payment of 3 months’ salary in lieu of notice (see clause 4 of the EC),^[267] so the result would have been the same because D conceded and was ordered by the DPO to pay 3 months’ salary in lieu of notice under the DPO Judgment. I agree with Mr Chain that this standalone 3 Months’ Termination Notice Finding would have been an overarching and complete answer, but more of this in the discussions in relation to Ground C in Part IX below.

IX.  GROUND C

157.  Ground C concerned the DPO’s alleged failure to properly investigate the issue of whether the “varied” and “extended” EC could be terminated by 3 months’ notice (see paragraphs I and IY of the 3^rd Grounds), which correlated to paragraphs 4 and 6 of C’s I Subs and paragraphs 30-33 of C’s II Subs. D’s response thereto was found in paragraph 6 of D’s I Subs and paragraphs 14-19 of D’s II Subs.

158.  Before I start to consider Ground C, I note this Perfected Ground was premised on a “revised/varied” and “renewed/extended” EC. On the face of Ground C and also plain from C’s II Subs and Mr Ng’s submissions in paragraphs 159-163 below, Ground C (premised as it were on a “revised/varied” and “renewed/extended” EC) was necessarily tied to Grounds A and B. This was quite obvious from the summary of Ground C in C’s II Subs, ie the DPO in arriving at the wrong conclusion that the EC had not been “varied” and “extended” to 3 March 2016 (ie Ground B) had, in effect, disabled herself from properly investigating the issue of whether the “varied” and “renewed” EC could be terminated by 3 months’ notice (ie Ground C), but instead hastily jumped to the wrong conclusion that even if the EC were “revised” and “renewed” it could still be terminated by 3 months’ notice or payment in lieu of notice (ie the 3 Months’ Termination Notice Finding).^[268] But since I have upheld the No Agreement, the Framework Non-Compliance and the No Authority Findings and also rejected Grounds A and B above, there was simply no basis for C to assert the EC had been “renewed” or “extended”, so it followed there was also no basis for C to go on and further assert the “renewed” or “extended” EC had been “revised” or “varied” so it was not terminable by 3 months’ notice or payment in lieu of notice. Thus, Ground C necessarily fell away, and the discussions below were on the assumption that the EC had been “renewed” or “extended” (which I disagree).

159.  I start with the relevant clauses of the EC which expressly provided as follows:

“Your employment will commence on 4 March 2008, and shall, subject to any earlier termination in accordance with the terms of this contract, continue for a period of three (3) years from the date that you are released to Line Flying Under Supervision (“LFUS”) ……” (clause 3)

“At any time after reporting for duty and prior to the commencement of the Type conversion course (Full or Short course as applicable), seven days’ notice or payment in lieu of notice will be required from either party to terminate the employment.

On commencement of the applicable conversion course, three months’ notice or payment in lieu of notice will be required by both parties

……” (my emphasis) (clause 4)

160.  In C’s I Subs, C claimed the DPO erred in law in failing to properly investigate the terms of the “renewed” or “extended” EC and to hold such “renewed” or “extended” EC was a fixed term contract not terminable by notice or payment in lieu thereof. It was said the 13/1/09 Email (which was fresh evidence not adduced before the DPO) clearly showed that had the DPO done proper investigation, the result of such further investigation would have made a difference to the outcome. It was further said that by such email D’s then COO Lim confirmed to C that for the “renewed” or “extended” EC (a) the provision for incorporation of the COS (clause 12 of the EC) and the provision for early termination by notice or payment in lieu of notice (clause 4 of the EC) did not apply to C, and (b) C’s conditions of service were those set out in such email that excluded the COS and included termination of C’s management position with D only upon “mutual agreement” (ie the EC had been “revised” or “varied”).

161.  In relation to the DPO’s alleged failure to investigate, Mr Ng submitted the DPO failed to properly investigate the following evidence which showed (as C claimed) management pilots such as C were not subject to termination by notice or payment in lieu of notice:

(a)	Mr Ng noted paragraph 26 of C’s submission dated 22 October 2018 submitted as follows:[269] “26. …… Thus D16(2) [acknowledgment of receipt of the 2008 COS dated 8 January 2008 which was signed by C on 4 March 2008] was voided as [C] did not sign for any 1 January COS 2008. It might be an 8 January 2008 for Management Pilots which would have no notice period for termination because Management pilots would have no notice period for termination because Management pilots were exemplary pilots and had no retirement age. Only way to terminate them was to go through the disciplinary process. For management pilot to give notice to resign, [C] would have to exercise [C’s] said Contract C5(3) Clause 6 Salary and Allowance 2nd paragraph “… to relinquish all training duties and return to line operation as a line captain.” Once as a line captain [C] would be a non-Management pilot to be bound by the new salary of the signed prevailing and not voided Employee Handbook (Pilot)/COS.” (my emphasis) C’s above submissions were made in the context of his allegation that the 2008 COS was not applicable to him because he did not sign to acknowledge the 2008 COS of “01” January 2008, but the DPO found the reference to “08” January 2008 in C’s signed acknowledgment was a mere typographical error, and C did acknowledge receipt of the 2008 COS of “01 January 2008” and did agree to abide by the rules and regulations stated therein (see paragraph 27(d) above). In Part VII above, I have found in paragraphs 87-89 and 92-93 above that C’s Perfected Grounds for the present appeal did not challenge the DPO’s finding that the 2008 COS was duly incorporated as part of the contractual framework governing the contractual relationship between C and D by virtue of clause 12 of the EC, and in any event such finding was unassailable on point of law (see paragraph 89 above). Likewise, the DPO also found that the 2009 COS was incorporated as part of the contractual framework that governed the contractual relationship between C and D by virtue of clause 12 of the EC (see paragraphs 91-92 above), and in any event such finding was unassailable on point of law (see paragraph 92 above). Given such findings and my views thereon, the point C made in paragraph 26 of his submissions dated 22 October 2018, which contradicted the express provisions of clause 4 of the EC (notice period of termination) and clause 3 of the 2008 COS (retirement age),[270]had no merit.
(b)	Mr Ng relied on such part of the Becky Li Email dated 28 January 2011 that was addressed to inter alia Vanessa Tang, asking her to check the 2008 COS as “the contract and terms for [C] are different from other pilots. There is no record for his re-title as TRI in p-file and dispute may be arisen”.[271] Mr Ng submitted the Becky Li Email was an admission by and on behalf of D to the effect that C’s EC and his terms of employment were “different from other pilots” (ie cockpit/line pilots or non-management pilots), but the DPO failed to properly investigate how C’s EC and terms thereof were different from those of the other pilots (see paragraphs 79(g) and 80(b)(ii) above). I have dealt with such argument in Part VII above (particularly in paragraph 88 above), and see no merit in such contention which also contradicted the express provisions of clause 4 of the EC (notice period of termination) and clause 12 (incorporation of the COS (including the 2008/2009 COS) into the EC). Given that C was unable to impugn the DPO’s No Agreement, Framework Non-Compliance and No Authority Findings, and further given my rejection of Grounds A and B, C’s reliance on the Becky Li Email for Ground C likewise had no merit.
(c)	C argued that the matter was put beyond doubt by the 13/1/09 Email (see paragraph 97 above). In particular, Mr Ng referred to the caption of such email (ie “Management Pilot Condition of Service”) and the following extract from such email to suggest that C’s “renewed” or “extended” EC could only be terminated by “mutual agreement” (ie the EC had been “revised” or “varied”): “As per your email enquiry, the below individual Management Condition of Service for the position of [MTP] is relevant to you. …… Management Position: [MTP] …… Termination of Management Position. Management position may be terminated upon mutual agreement by either party as stated in Clause 6 of your employment contract to relinquish all duties and return to line operations as a line captain. To return to line operation as line captain, a new line captain contract with designation “Captain” will be mutually agreed upon.” (my emphasis).

162.  C’s II Subs went on to submit the DPO’s failure to properly investigate whether the “renewed” or “extended” EC could be terminated by 3 months’ notice or payment in lieu thereof was compounded by her failure to investigate the following matters which clearly showed the EC had been “revised” or “varied” so that it was not terminable by 3 months’ notice or payment in lieu thereof (and for convenience I also set out my views below):

(a)

C claimed D’s Payment Letter (see paragraph 1 above) stated that the “natural expiration date” of the EC was 3 March 2011, and D never suggested C’s employment was terminated by notice or by payment in lieu of notice, so it was argued D never terminated the EC by 3 months’ notice or payment in lieu thereof. Whilst it was correct to say that the Payment Letter regarded the EC had expired by effluxion of time, I cannot see how that would aid C in establishing Ground C. It was obvious from the Payment Letter that D believed (which turned out to be quite erroneous) that the EC expired by effluxion of time on 3 March 2011, so D (again erroneously) regarded the EC as having been terminated by natural expiry on 3 March 2011. However, as D conceded and as explained in paragraph 25 above, the 3-year term under the EC would only expire in November 2012, so D prematurely (and hence wrongfully) terminated the EC. The question was what damages were recoverable from D due to such premature/ wrongful termination. On C’s contention that the EC had been “revised” or “varied” with removal of clause 4 thereof, so the EC (which was assumed to have been “renewed” or “extended” to 3 March 2016 -  see paragraph 158 above) would have become a fixed term contract not terminable by notice or payment in lieu of notice but terminable only by mutual agreement, hence C was prima facie entitled to damages calculated by reference to the wages he would have received from D during the unexpired term of employment under the “renewed” or “extended” fixed term contract less whatever actual income he earned or notional income he ought to have been able to earn from other sources during the unexpired period of employment up to 3 March 2016.[272] But actually by her No Agreement, Framework Non-Compliance and No Authority Findings, the DPO found the EC had not been “renewed” or “extended” to 3 March 2016, and she alternatively came to the 3 Months’ Termination Finding on the basis of clause 4 of the EC (ie the DPO found EC was not “revised” or “varied”). These findings were affirmed as a result of my rejection of Grounds A and B. I will return to the issue of applicability of clause 4 of the EC below, but on the basis of the DPO’s aforesaid findings (including the 3 Months’ Termination Notice Finding premised on clause 4 of the EC that was contractually applicable notwithstanding any alleged “renewal” or “extension” of the EC), damages for wrongful premature termination of the EC (ie failing to give sufficient notice of termination or sufficient payment in lieu of notice) would be as D conceded or as the DPO ordered (ie 3 months’ salary equivalent to the contractual requisite for payment in lieu of notice -see paragraph 25 above). As explained by A Cheung J (as he then was) in Law Shiu Kai v Dynasty International Hotel Corp & ors,[273] the prima facie measure of damages for fixed term employment contract was subject to an important exception, ie that “if the so-called fixed term employment contract contains built-in notice provisions allowing either party or both parties to terminate the contract of employment by notice [or payment in lieu of notice], then damages would only be calculated by reference to the period of notice [or the amount of payment in lieu of notice] (subject to a seven-day minimum period: s.6(2) of the Employment Ordinance)” (page 542).[274] This was also recognised under statute law as the EO provides as follows: “6. Termination of contract by notice (1) Subject to subsections (2), (2A), (2B), (3) and (3A) and sections 15 and 33, either party to a contract of employment may at any time terminate the contract by giving to the other party notice, orally or in writing, of his intention to do so. (2) The length of notice required to terminate a contract of employment shall be: …… (c) in every other case, the agreed period, but not less than 7 days in the case of a continuous contract. …… 7. Termination of contract by payment in lieu of notice …… (1A) Subject to sections 15 and 33, either party to a contract of employment may at any time terminate the contract without notice by agreement to pay to the other party – …… (b) whether the length of notice required to terminate the contract under section 6 is a period expressed in months, a sum calculated by multiplying the number of months required by the monthly average of the wages earned by the employee during – (i) the period of 12 months immediately before the date of notification; …… …… 8A. Damages for wrongful termination of contract (1) Without prejudice to sections 9, 10 or 11(2), where a contract of employment is terminated otherwise than in accordance with section 6 or 7, a sum equal to the amount of wages that would have been payable had the contract been terminated in accordance with section 7 shall be payable by the party terminating the contract to the other party. ……” (my emphasis) So, if the EC were not “revised” or “varied” as C alleged, then even if the EC had been renewed, the 3 Months’ Termination Notice Finding would be a complete answer to Ground C.

(b)

C claimed that the Contract Renewal Documents clearly demonstrated D’s then COO, D’s then GMT and D’s then (Acting) DFO were operating under the premise (and it was C’s and D’s common intention) that the “revised” and “renewed” EC was a long term arrangement not terminable by notice or payment in lieu of notice, which was consistent with the 2 Emails and which contradicted any notion that the “revised” and “renewed” EC was terminable by 3 months’ notice or payment in lieu of notice. Mr Ng put forward the following examples: (i) in the 27/8/10 Email D’s then COO Lim stated D “require [C’s] instructor service indefinitely …… Once [C] past the age of 65 years, we would still welcome [C] for the training job and/or other position in the company for [C’s] loyalty …… [Stewart] will effect [C’s] contract renewal at a later date”;[275] (ii) in the 28/8/10 2nd Email D’s then COO Lim stated “[at] a later date, kindly advise HR [human resources] accordingly for the renewal of [C’s] contract for a 5 years period with the same remuneration, benefit, terms and condition of service from 04 March 2011 to 03 March 2011 …… We intend to keep [C] for the long term ……”;[276] (iii) in the 8/11/10 Letter D’s then GMT Stewart reiterated “[kindly] advise HR [human resources] accordingly for the renewal of [C’s] contract for a 5 years period with the same remuneration, benefit, terms and condition of service from 04 March 2011 to 03 March 2016 ……” and D’s then COO Lim had “ earlier written to [C] in August 2010 confirming the earlier verbal agreement …… [Lim] confirmed that [D] had intended to keep [C] for the long term”.[277] I am unable to see how the Contract Renewal Documents could assist C on Ground C. The 27/8/10 Email, the 28/8/10 2nd Email and the 8/11/20 Letter that Mr Ng particularly referred to at best went to the allegation of a “renewed” or “extended” EC up to 3 March 2016, but the DPO rejected this and came to her No Authority, Framework Non-Compliance and No Authority Findings, which I have found were unassailable on point of law upon rejection of Grounds A and B. I also cannot see how the Contract Renewal Documents would suggest the EC was “revised” or “varied” into the fixed term contract not terminable by notice or payment in lieu of notice by removal of clause 4 of the EC, especially when the 28/8/10 2nd Email and the 8/11/10 Letter that Mr Ng particularly relied on expressly claimed the EC was “renewed” or “extended” with the same remuneration, benefit, terms and conditions of service, which on its face would include the express provision in clause 4 of the written EC that was signed by C and D. Indeed, the 28/8/10 2nd Email and the 8/11/10 Letter put forward by C were precisely the documents the DPO relied on in making the 3 Months’ Termination Notice Finding that rested on the applicability of clause 4 of the EC (on the assumption that the EC had been “renewed” or “extended”) (see paragraph 33 above). Indeed, all Mr Ng was able to say was to suggest it was inherently improbable and made no sense for C and D to agree on the long term arrangement as embodied in the “revised and renewed” EC (ie for 5 years to 3 March 2016) only for it to be terminated by 3 months’ notice or payment in lieu of notice. I disagree. I do not see any conflict between the concept that contracting parties wishing for a long term relationship if all goes smoothly, but at the same time reserving an equal right of early termination for each of them. Such escape hatch is usually not in defiance of a wish for long term commitment, but to cater for future imponderables not anticipated at the time of contract, eg future change of company policy, business operations or corporate reorganisation for the employer, or personal/ health reasons (such as wish for relocation from Hong Kong) for the employee. Indeed, there was such early termination provision (ie clause 4) in the EC when the contract duration was for 3 years (ie clause 3).

163.  C claimed the DPO’s aforesaid failures to properly investigate the issue of whether the “revised” and “renewed” EC could be terminated by 3 months’ notice or payment in lieu of notice resulted in injustice in that a fair and proper determination of the claim could not be attained.

164.  To put it simply, C put forward Ground C to challenge the DPO’s 3 Months’ Termination Notice Finding (ie even if the EC had been “renewed” or “extended” (which D denied and which the DPO rejected by the No Agreement, the Framework Non-Compliance and the No Authority Findings), the “renewed” or “extended” EC would have contained similar terms and conditions to the EC (eg clause 4 thereof), so D could still have terminated the “renewed” or “extended” EC by payment of 3 months’ salary in lieu of notice, and the result would have been the same as the DPO Judgment).^[278] But for the reasons set out in paragraphs 161-162 above, C’s submissions dated 20 October 2018, the Becky Li Email, D’s Payment Letter and the Contract Renewal Documents could not help C to establish that the EC had been “revised” or “varied” by removal of clause 4 thereof in order to overcome the 3 Months’ Termination Notice Finding.

165.  I agree with Mr Chain that C’s submissions sought to bolster Ground C by essentially (a) using the 2 Emails (which were fresh evidence) to seek rectification of the EC for common/unilateral mistake as justification for ridding the EC of clause 4 that provided for early termination by notice or payment in lieu of notice (see paragraph 160 above) and to substitute a new provision for “termination by mutual agreement only” (see in paragraphs 160 and 161(c) above), ie the “revised” or “varied” EC, and (b) then asserting a “renewed” or “extended” employment contract up to 3 March 2016 (under Grounds A and B) “with the same remuneration, benefit, terms and conditions of service” which by reason of (a) above would be without clause 4 of the EC but would have a provision for termination by mutual agreement only, ie the “renewed” or “extended” EC. It was essentially on such basis that C contended the DPO’s aforesaid failures to investigate gave rise to injustice in that a fair and proper determination of C’s claim could not be attained (see paragraphs 161-163 above).

166.  Mr Chain complained this entirely new and non-pleaded point of “perpetual contract” terminable only upon “mutual agreement” was taken for the first time on appeal by using the entirely new evidence of the 13/1/09 Email that was not put before the DPO. Mr Ng submitted the “renewed” or “extended” EC was not a “perpetual contract” but a fixed term contract expiring on 3 March 2016 that was terminable by mutual agreement only. Be that as it may, I am of the view that the crux of the matter was whether upon alleged “renewal” or “extension” of the EC, it was terminable by notice (or payment in lieu of notice) or terminable by mutual agreement only. In the latter case, unless the C would agree and apparently he did not, the alleged “renewed”/“extended” and “revised”/“varied” EC would have continued “perpetually” in the sense of without early termination until its natural expiry on 3 March 2016.

167.  More importantly, C’s present stance under Ground C flied against his pre-existing case. As seen in Part VIII above, C’s case before the DPO was that the EC had been renewed to 3 March 2016 on the basis of the Contract Renewal Documents, which asserted the EC was renewed up to 3 March 2016 “with the same remuneration, benefit, terms and condition of service” (see 28/8/10 2^nd Email and 8/11/10 Letter in paragraph 110(c)-(d) above). Mr Chain drew my attention to C’s evidence on this subject in the Transcript:^[279]

“Q. Please, refer to C-31.

COURT: I’m here.

DCR: Yes.

COURT: Yes? Which part are you referring to?

DCR: Again, the second paragraph.

COURT: Yes.

DCR: Richard Stewart advised HR [human resources] according to the renewal of Mr Woon contract for a five-year period, …

COURT: Yes.

DCR: … with the same remuneration benefit and terms according to the CoS from 4 March 2011 to 3 March 2016, …

COURT: Yes.

DCR: … but, hence, if the contract had been renewed, if any it can also be terminated by giving three month notice.

Q. Do you agree?

A. No, I …

COURT: I’m – you don’t have to answer it. I don’t really understand your questions. You are saying that, by this letter, [C’s] contract could be renewed so it will mean that it could be terminated?

DCR: Yes.

COURT: Is that your questions?

DCR: From Mr Woon understanding, this is the letter representing the top management to renew the contract …

COURT: Yes.

DCR: … with him for another five years.

COURT: Yes.

DCR: But, hence, if the contract is – was really renewed, it can also be terminated by giving three-month notice.

COURT: Oh, I see. So you are saying that your alternative case being that, even if this letter or any such letter constitute – reflect an effective renewal …

DCR: Yes.

COURT: … of the contract, then the contract, because it is subject to the same terms and conditions, and thereby, [D] is entitled to terminate it by giving three months’ notice?

DCR: Yes.

COURT: So, in any event, whether your contract is renewed or not, they are entitled to give you three months’ notice to terminate it. This is their alternative case, as I can understand. Do you understand?

A. I disagree because I did not …

COURT: But do you understand his – her questions or not?

A. She’s trying to say that, in the event I have the new contract …

COURT: Yes.

A. … they can terminate me with the clause inside there with three months’ …

COURT: Yes.

A. … notice. Yes, I disagree because I did not even sign that contract yet. So it could be that, by the time I want to sign the contract, I tell you to remove this clause or whatever.

COURT: If that this the case, how can you say there is an effective renewal contract between you and [D]? What is your case, [C]? Are you saying that there has already been an effective contract or “No, there haven’t been anything signed between us”? What is your case?

A. The ...

COURT: Have or have not?

A. I am very confused by the question here. I …

COURT: Her questions is not confusing. I have already rephrased it.

A. You are trying to say that, if I sign the new contract, you will have a three months clause there to give notice to me to leave; is that what …

COURT: No. It is no dispute that no further contract has been signed …

A. Yes.

COURT: … by the parties.

A. Yes.

COURT: That’s for sure. There’s nothing has been signed.

A. Yes.

COURT: [D] is saying that, in the event, what you relied upon about contract renewal constitute an effective contract between you and [D] …

A. Yes.

COURT: … comma, then they still have the right to terminate you by giving you three months’ notice and your answer is very confusing because “No, I disagree because I have not signed anything. If I sign anything, I will request you to remove that clause.” So your case is there has been an effective renewal contract or there wasn’t any effective contract? If you rely on this letter, it must be that the new contract would be subject to the same remuneration, benefit terms, and conditions of service which include they can terminate the contract by giving you three months’ notice or payment in lieu. Am I correct to rephrase this questions like this, [D]?

A. Yes.

DCR: Yes.

A. Because I do not know the terms, so I refer back to the terms and condition of no. 4, okay, this renewal. So this is the notice period of termination …

COURT: Which one are you’re referring to?

A. C-5.2, paragraph no. 4.

COURT: Yes.

A. So I will presume your question is asking that, when I – my new contract would be subject to this same term; is it correct?

COURT: Of course, it is – has been set out in the letter at C-31.

A. Yes. So I accept this clause 4 if the new contract, if that is the case, yes.

COURT: So they can give you three months?

A. Down here, they didn’t said anytime give me three months’ notice. It just state, while you are flying under this kind of condition, you cannot – “… on commencement … (indistinct) course, three months’ notice in lieu will be required for both parties on commencement of the course.”

COURT: So you are saying that they have no right to terminate your contract, no matter what?

A. No, if I am in that situation on commencement of the course, “anytime … (indistinct) reporting time, duty, commencement of type commercial … (indistinct) seven days’ notice …”, yes, do “commencement of course … three months’ notice in lieu will be required from both parties, so that means, are you saying that I can give them …

COURT: From either party …

A. … three months’ …

COURT: … at the first paragraph under clause 4.

A. For either parties. Yes, I agree. This – if this is the correct term, then it is.

COURT: Thank you.” (my emphasis)

From the above, it was plain that C understood D’s contention was that if the EC been “renewed” and “extended” to 3 March 2016, it would have had the same terms as the EC, which would have included clause 4 of the EC that permitted D to terminate C’s employment by giving 3 months’ notice or payment in lieu thereof. At first, C suggested he had not signed the new employment contract but when he would do so he could have asked for removal of any provision like clause 4 (if any) in the new contract. It was then pointed out to him that he actually never signed any new written employment contract, but on the assumption there was effective renewal of the EC with extension of his employment to 3 March 2016, C by his testimony accepted clause 4 of the EC was in the “renewed” or “extended” contract, but claimed that either C or D could give 3 months’ notice to terminate the employment relationship only in the situation of “[on] the commencement of the applicable conversion course” as expressly provided in clause 4 of the EC. In other words, C’s evidence/case before the DPO was that if the EC was “renewed” or “extended”, clause 4 of the EC was still applicable (which was consistent with the 28/8/10 2^nd Email and the 8/11/10 Letter being 2 of the 4 Contract Renewal Documents that C relied on) and the only question was whether there was “commencement of the applicable conversion course”. Thus, on the basis of C’s case that the “renewed” or “extended” EC was on “the same remuneration, benefit, terms and condition of service” as the EC, the DPO made the 3 Months’ Termination Notice Finding. In my view, Ground C did not sit well with C’s own evidence.

168.  I therefore agree with Mr Chain that C’s contention for Ground C in the present appeal (ie the EC was not only “renewed” or “extended” to 3 March 2016 but it was also “revised” or “varied” in that clause 4 of the EC was not applicable) was plainly a new point taken on appeal that was focally dependent on the introduction of fresh evidence (ie the 2 Emails the authenticity of which D disputed). To get Ground C off ground and to sustain his contention that the EC was “revised” or “varied” by way of rectification to remove clause 4 allegedly as a result of alleged mistake so that upon “renewal” or “extension” of the EC “with the same remuneration, benefit, terms and condition of service” there would be no clause 4 (as explained in paragraph 165 above), C inevitably had to pray in aid the 13/1/09 Email that appeared to suggest D’s then COO Lim confirmed that so long as C was a manager or management pilot (a) clause 12 of the EC regarding incorporation of the 2008 COS and subsequent versions of the COS as part of the EC did not apply to him, (b) the 2009 COS (which would supersede the 2008 COS) and subsequent versions of the COS were not binding on him and he need not sign acknowledgement for the same, (c) clause 4 of the EC was inapplicable to him and his conditions of service were as set out in the 13/1/09 Email, ie there would be a new “termination of Management Position” clause such that C’s employment contract was terminable only “upon mutual agreement”, and (d) it was intended to substitute a 5-year employment contract for C in 2011/2012 in line with discussions for “permanent contract above age 65 for [him] and other pilots in management or training positions” (see paragraph 161(c) above).

169.  In my view, the DPO had made proper investigation and finding. C’s criticism that the DPO “failed” to properly investigate is difficult to understand when he necessarily relied on fresh evidence on appeal (ie the 13/1/09 Email) that was not placed before the DPO and not even mentioned in the 1^st, 3^rd and 4^th Grounds. It was also not easy to see how C could say he had the leave of this court under the Leave Decision to pursue Ground C that crucially relied on the 2 Emails. In my view, C’s attempt to use fresh evidence to shift from his own testimony at the Trial and, more importantly, to upset the factual 3 Months’ Termination Notice Finding made by the DPO, was not any failure by the DPO to investigate that might trigger the Sun Min Exception (if such exception to the restriction on receiving new evidence on appeal from the Tribunal were viable, which I have found to be highly doubtful). Rather, in my view, C was belatedly trying to use fresh evidence on appeal to support a new point not taken at the Trial and which did not sit well with his own testimony at trial.

170.  In any event, D argued the 13/1/09 Email was irrelevant as (a) the sender of such email (ie D’s then COO Lim) had no authority to re-write the EC (ie the No Authority Finding), (b) proper procedures were not followed through as there was no requisite approval for renewal of C’s EC (ie the Framework Non-Compliance Finding), and (c) post-contractual conduct was not admissible to interpret the EC.

171.  Mr Ng disagreed with (a) above, and submitted that D’s then COO did not “re-write” the EC by the 13/1/09 Email as he was just “explaining what the parties appeared to have actually agreed that the EC should say”. I disagree. There could be no doubt that clause 4 was an express contractual provision of the written EC that C and D signed on 4 March 2008, and unless there were vitiating factors clause 4 was binding on both C and D.^[280] To make out Ground C, C had to rely on vitiating factor(s) to denude clause 4 of the EC of its binding legal effect, so C claimed the EC was “varied” or “revised”. In suggesting that D’s then COO Lim was just “explaining what the parties appeared to have actually agreed that the EC should say”, C was plainly relying the alleged vitiating factor of alleged common/mutual mistake or C’s alleged unilateral mistake allegedly known to D to remove clause 4 of the EC and replace it with a provision for termination by mutual agreement only. In my view, whether this was described as “revise”, “vary” or “re-write”, the purpose and effect was to rid the EC of clause 4 on termination by notice or payment in lieu of notice. For reasons explained above, it was impermissible for C to raise such matter on appeal. In any event, I have upheld the No Authority Finding.

172.  In respect of (b) above, I have rejected Grounds A and B and found the DPO’s No Agreement, Framework Non-Compliance and No Authority Findings unassailable on point of law.

173.  As to (c) above, Mr Ng suggested Mr Chain’s contention was misconceived because there was no post-contractual conduct as alleged or at all because D’s then COO Lim was “explaining what the parties appeared to have actually agreed that the EC should say”. I disagree, and repeat what I have said in paragraph 171 above. Once it was understood that clause 4 of the written EC signed by both C and D was contractually binding unless C was able to satisfy the court of any vitiating factor (eg common/unilateral mistake) or variation, the contents of the 13/1/09 Email being a communication after the EC was made was plainly post-contractual conduct.

174.  In this respect, Mr Chain drew assistance from Yuen Ching Yuen v Union Insurance Society of Hong Kong Ltd in which P Cheung J (as he then was) said as follows:^[281]

“The decisions of Schuler v Wickman [1974] AC 235 and James Miller v Whitworth Street Estates [1970] AC 572 to show that “it is not permissible to use as an aid in the construction of the contract anything which the parties said or did after the it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later, per Lord Reid in James Miller v Whitworth Street Estates [1970] AC 572 at page 603. Mr Li relied on a passage in Chitty on Contracts (27th ed) Vol 1, para.12-111 in which it was stated that:

… although they (ie the subsequent conducts) are admissible to show whether there was a contract and what the terms of the contract were, either originally or by variation, or as the basis for an estoppel.^[282]

I would deal with the question of estoppel later on. However, it is not in dispute that an agreement existed between the parties and no variation of contract is alleged. It is difficult to understand what the authors of Chitty on Contracts are referring to when they say that subsequent acts can be looked at to ascertain the original terms of the contract. This approach is clearly not in accordance with the decisions of the House of Lords. It is not necessary for me to rule on the argument advanced by Mr Shieh, counsel for the defendant, that one is only allowed to look at subsequent conducts to ascertain the original terms of a contract where there is a dispute of evidence as to what the original express terms are.

Mr Li further relied on a passage in Lewison on the Interpretation of Contracts (2nd ed) para.2.11 in which it was stated that:

The court may not look at the subsequent conduct of the parties to interpret a written agreement. However, where the agreement is partly written and partly oral, subsequent conduct may be examined for the purpose of determining what were the full terms of the contract.

Mr Li argued that the plaintiff’s pleaded case is that the agreement was evidenced by the memorandum (para.3 of the re-re-amended statement of claim). The defence pleaded that the agreement was made partly orally and partly in writing. That being the case, the court is entitled to examine the cause of dealings between the parties.

I do not accept this argument. Despite the pleadings, the defendant had not relied on any oral terms made between the parties. The plaintiff did not dispute that the memorandum contained all the terms of the agreement reached between the parties. This being the case there was no room for departure from the principle stated by the House of Lords.”

175.  As alluded to above, D did not accept the authenticity of the 2 Emails, and claimed there was no justification to allow C to belatedly adduce new evidence on appeal, which was unfair and prejudicial to D who had no opportunity to respond to and/or cross-examine on such new evidence. I have rejected Grounds A and B, including C’s complaint that the DPO failed to investigate or properly investigate the matter of common/unilateral mistake over clause 12 of the EC (and hence applicability of the 2008 COS and/or the 2009 COS) (see paragraphs 94-107 above). My discussions/conclusions in declining to admit the 2 Emails as fresh evidence to support a new point of rectification for common/unilateral mistake (particularly paragraphs 104-107 above) on appeal for Ground A apply mutatis mutandis here. For all the above reasons, I reject C’s application for the adducing the 2 Emails for the appeal and also decline to remit to the Tribunal for further investigation/ finding. In the absence of the 2 Emails which were crucial to C’s attempt to rectify the EC by removing clause 4 of the EC, Ground C fell away. Consequently, and in my view, the DPO’s No Agreement, Framework Non-Compliance, No Authority and 3 Months’ Termination Notice Findings were unassailable on point of law, and the EC had not been (a) “varied” or “revised” (ie clauses 3, 4 and/or 12 of the EC were applicable and binding) and/or (b) “renewed” or “extended” until 3 March 2016 as C alleged.

176.  Finally, C’s I Subs raised a further point that the DPO failed to properly investigate the issue of what “applicable conversion course” in clause 4 of the EC meant and whether C as MTP was subject to any “applicable conversion course” (as the evidence in this respect was unclear), and had the DPO properly investigated this matter she would have found from the 13/1/09 Email there was no “applicable conversion course” applicable to C as he had been authorised and endorsed by the Hong Kong Civil Aviation Department as an instructor. At the NOM Hearing, Mr Ng was less robust in that he submitted there was ambiguity as to whether clause 4 of EC was operative, but this court could not conclude clause 4 of the EC was applicable to C when the DPO Reasons did not discuss, analyse or make finding on what “applicable conversion course” meant. Whilst Nr Ng accepted pages 122-124 of the Transcript^[283] recorded the DPO did ask C what “applicable conversion clause” meant, he complained there was no analysis or finding as to what that meant in the DPO Reasons.

177.  Mr Chain disagreed, and submitted this issue was answered by the parties’ pleadings. D’s supplemental statement dated 20 September 2017 stated as follows:^[284]

“5.5 Termination (clause 4): [C’s] employment could be terminated by notice or payment in lieu of notice following the commencement of the applicable conversion course without the need to justify or demonstrate any reason for the termination. Clause 4 of the [EC] states that:

“… On the commencement of the applicable conversion course, three months’ notice or payment in lieu of notice will be required from both parties …”, and

[D] provided and [C] completed the B737-800 aircraft transition training course on 15 November 2008 (C-20 and marked by [C] as EXL4). As such, [C’s] employment could be terminated by either party by giving the other party 3-month notice or payment in lieu of notice at any time.” (my emphasis)

C’s reply dated 29 January 2018 to D’s 3^rd supplemental statement dated 23 January 2018 pleaded that:^[285]

“Neither was there ever stated 3 months’ notice by [D] or payment in lieu of notice for contract termination for [C] after [C’s] loyal service for [D] from 4^th March 2008, after the long process of studying and passing the 6 HKCAD ATPL Examinations held from 27^th March to 17^th April 2008, then the appointment by the HKCAD as TRI or Approved Person on 23^rd June 2008 (C76) via foreign licence qualifications and issue of Temporary HKCAD Flying Permit, RT training and testing for [D], then the of Completion of the Type Conversion Course on 15^th November 2008 (C19.4), ……” (my emphasis)

Thus, there was common consensus between the parties that C completed the type conversion course on 15 November 2008, which corresponded to the certificate issued by D and signed by D’s then GMT Stewart and D’s then COO Lim that “…… certify [C] has successfully completed the B737-800 Transition Training Course at Hainan Airlines Flight Training Centre, Sanya 15 November 2008”,^[286] which date was commonly pleaded by both parties.

178.  This was also borne out by the Transcript that Mr Ng referred to:^[287]

“COURT: So what is the meaning of “On the commencement of the applicable …” – once the applicable conversion course has been commenced, both parties can give notice to the other side for termination. I think this is only can be the …

CLAIMANT: Yes.

COURT: It can be the only …

CLAIMANT: You see, …

COURT: … understandings of this clause.

CLAIMANT: So once the commencement of this type course all finishes … (indistinct) but you have completed the course, all these don’t apply at all.

COURT: This is your interpretation. This is your interpretation.

……

COURT: Which clause you are referring to?

CLAIMANT: Clause 4.

……

COURT: Second paragraph of clause 4.

CLAIMANT: So, “On the commencement of the applicable conversion …”

COURT: Yes.

CLAIMANT: “… course …”

COURT: Yes.

CLAIMANT: “… on the application …” – “… applicable conversion course”, “On the commencement of the applicable … three months’ notice or payment in lieu of notice will be required from both parties.” So this is the time on commence – on applicable conversion course. But this is already after the conversion course.

COURT: Thank you. This is your interpretation. And you are simply suggesting that, after the completion of the conversion course, they have no right to terminate you at all, is that what you’re suggesting?

CLAIMANT: Yes.

COURT: Sorry, this is your interpretation and I noted it.

……” (my emphasis)

It was plain from the above that C’s understanding of clause 4 of the EC was that the ability of the parties to terminate the EC by notice was at “the commencement of the applicable conversion course”, but such right was lost after completion of such course. C went on to say D had no right to terminate his EC by notice because “…… this is already after the conversion course”. It was also C’s testimony that the applicable conversion clause referred to in clause 4 of the EC had been completed.

179.  Given such common consensus, there was nothing for the DPO to investigate or to discuss/analyse, and there was no need for her to come to any express finding. As C completed the “applicable conversion course” by 15 November 2008, clause 4 of the EC was plainly operative under the EC (that had not been renewed), and either C or D could have terminated C’s employment by giving 3 months’ notice or payment in lieu of 3 months’ notice. In my view, C’s complaint in paragraph 176 above was a non-point. Certainly it formed no basis for C to belatedly attempt on appeal to introduce the 13/1/09 Email to contradict his own plea/ admission that the transition training course on 15 November 2008 was a “type conversion converse”.^[288] This also raised question as to the provenance and credibility of the 2 Emails, which were introduced so late in the day that it would prejudice D who by reason of C’s plea and admission did not have to cross-examine C in detail on the subject or to advance further countervailing evidence at Trial.

180.  In my view, C’s challenge against the 3 Months’ Termination Notice Finding was without merit, and I reject Ground C. Since the 3 Months’ Termination Notice Finding was unassailable on point of law, this amounted to a standalone basis to uphold the DPO Judgment, and C’s appeal must be dismissed since the outcome/result would have been the same even if C somehow were able to establish the EC was renewed. Further, Ground C was essentially reliant on the introduction of fresh evidence (ie the 2 Emails), and for reasons given above, I refuse leave for C to rely on the 2 Emails for the appeal.

X.  GROUND D

181.  Under Ground D, C claimed the DPO failed to properly investigate his repeated claims that D as employer had the contractual obligation to act in good faith.^[289] Mr Ng claimed this ground was covered in inter alia paragraphs F, Q and T and paragraph (ix) of the prayer of reliefs in the 3^rd Grounds,^[290] but these passages from the 3^rd Grounds seemed to focus more on D’s alleged breach of the implied term of trust and confidence.

182.  Whilst Mr Chain frankly accepted C’s pleadings/statements and the 1^st, 3^rd and 4th Grounds were sporadically littered with what he described as the “buzzwords” of “good faith”, “trust” and “confidence” in a rambling manner, he complained that Ground D did not feature in C’s I Subs and given the rationale/purpose for C’s I/II Subs as explained in paragraph 13 above C was not entitled to pursue Ground D at the NOM Hearing.

183.  Mr Ng pointed to paragraph 8 of C’s I Subs that concerned C’s complaints that DPO failed to properly investigate, address or deal with or sufficiently investigate, address or deal with C’s claim of discrimination, victimisation, abuse of process, malice or gross negligence against C that underlined D’s conduct to terminate C’s employment, and suggested Ground D “is subsumed under the ground in paragraph 8 [of C’s I Subs]”. In short, Mr Ng asked this court to read Ground D (canvassed in paragraphs 34-38 of C’s II Subs) into paragraph 8 of C’s I Subs. But paragraph 8 of C’s I Subs itself formed a separate Perfected Ground, ie Ground E that was canvassed in 39-41 of C’s II Subs. Having carefully considered paragraph 8 of C’s I Subs, I find myself unable to read Ground D in such Perfected Ground (which essentially was Ground E). Thus, Ground D was procedurally barred for lack of inclusion in C’s I Subs.

184.  In any event, it made no difference because at the NOM Hearing, Mr Ng conceded Ground D would not avail C unless he was able to establish Grounds A and B. As Mr Chain rightly pointed out, C could not succeed on Ground D by raising issues over whether there had been breach of the duty of good faith, whether C suffered additional damages, and whether C had established the quantum of the claimed damages in vacuo without substantiating his allegation that the DPO’s alleged failure to investigate such issues might actually make a difference. After all, the DPO was not obliged to consider every possible obligation owed by D unless it was properly raised and pursued. In any event, having failed on Grounds A and B, Ground D was necessarily a non-starter, and there was no need for me to consider Ground D substantively. But for the sake of completeness, I shall do so briefly.

185.  Under Ground D, C claimed the DPO failed to properly investigate his repeated claims that D as employer had the contractual obligation to act in good faith (see footnote 289 above), and such failure was compounded by the DPO’s failure to entertain C’s submissions in his letter dated 5 November 2018^[291] (which was submitted after the Trial) which drew her attention to inter alia the Court of Appeal decision in Tadjudin Sunny v Bank of America, National Association.^[292] Mr Ng submitted that bearing in mind section 20(1) of the LTO provides that the hearing of a claim in the Tribunal shall be conducted in an informal manner, the DPO ought to have made further investigations, particularly on the question of how the principles propounded in Tadjudin Sunny would impact on C’s claim. As the DPO did not further investigate, she did not deal with C’s claim based on breach of the contractual obligation of good faith and/or implied term of trust and confidence, and consequently made no determination as to (a) whether there had been any breach of such contractual obligation/term in the EC, (b) whether C suffered any additional damages which was not too remote as a result of breach, if any, and (c) whether the quantum of damages claimed by C was established.^[293] It was said the DPO’s conclusion that C’s post-Trial additional submissions added nothing to C’s case^[294] was arrived at without proper consideration of Tadjudin Sunny, and was insupportable.

186.  In fairness to the DPO, she did not merely brush aside C’s post-Trial submissions even though she considered slipping in submissions after the Trial to be quite inappropriate. In fact, she did consider C’s submissions as well as D’s supplemental submissions in reply dated 7 November 2018,^[295] and found that the former did not add further to C’s case for the reasons set out in the latter (see paragraph 31 above). I do not agree the DPO failed to properly consider and/or investigate these matters raised by C. Rather, it was C who belatedly raised such matters at the post-Trial stage, which was unfair to D who could have cross-examined C (or even adduced countervailing evidence if any) on those matters at the Trial had they been timely and properly raised. I do not see how the DPO could be faulted in dealing with these new points in the way she did.

187.  But as Mr Chain submitted, the substantive answer to Ground D was a legal one. Notwithstanding allegations of obligation of good faith (and duty of trust and confidence), such obligation/duty did not exist in vacuo. In the context of an employment contract, the concept of good faith (and trust/confidence) was the express/implied yardstick that would measure the employer’s performance of his contractual duties and obligations prescribed by the terms and conditions of the contract. Thus, one could not (as asserted in Ground D) simply assert there was a duty of good faith or implied trust and confidence without going further to say how D’s performance of its contractual duties/obligations interacted with the duty of good faith (and/or implied trust and confidence). This was clearly borne out in Tadjudin Sunny in which the Court of Appeal said as follows:

“46. It is well established that an apparently unqualified power or discretion given to a party to a contract should generally be construed as being subject to some implied restrictions regarding the exercise of that power or discretion.

……

55. In all, a power or discretion given to a party to a contract which on its face is unqualified is generally to be read as being subject to an implied requirement that it can only be exercised in good faith, rationally and for a proper purpose, and not arbitrarily or capriciously or in a manner which is not bona fide. Such restrictions are implied in order to give effect to the reasonable expectations of the parties to the contract.

56. In the present case, the Bank accepts that its employment contract with the plaintiff contains 2 implied terms relevant to the performance incentive program, namely, that:

(1) the Bank should not implement its performance evaluations in respect of the plaintiff in an irrational, perverse or arbitrary manner or in a manner that was not bona fide; and

(2) the Bank should not administer its performance incentive program in respect of the plaintiff in an irrational, perverse or arbitrary manner or in a manner that was not bona fide.

57. The critical question is whether clause 3 of the employment letter, which on its face permits the Bank to terminate the plaintiff’s employment without cause by giving one month’s notice or by paying one month’s salary in lieu of notice, ought to be read as being subject to some implied restraints, in particular, an obligation not to exercise the power of termination in order to avoid the plaintiff being eligible for the Bank’s performance incentive program.”

Thus, in Tadjudin Sunny, the concept of good faith was used to qualify the unqualified discretion given to the employer to terminate by notice the employee’s employment so that such discretion could only be exercised in good faith, rationally and for a proper purpose, and not arbitrarily or capriciously or in a manner not in good faith. Thus, the court implied an “anti-avoidance” term to prevent the employer from terminating the employee’s employment by notice with a view to avoid the employee being eligible for the employer’s performance incentive programme.

188.  In the present case, C did not put forward his alleged ground based on the concept of good faith to interpret any existing contractual obligation or to imply any contractual obligation. Rather, C tried to use the concept of good faith to attack D’s failure to renew his EC (ie alleging that D failed to act in good faith by not renewing the EC).^[296] But since I have rejected Grounds A and B, and found the No Agreement, Framework Non-Compliance, No Authority and 3 Months’ Termination Notice Findings to be unassailable on point of law, it was plain there was no contractual duty or obligation on the part of D to renew C’s EC. Indeed, clause 3 of the EC provided that “[the] option of renewal shall however be exercised at [D’s] discretion and notified to [C] in writing before the expiry of this contract”, and clause 2.4.4 of the 2009 COS provided that it was up to D to give notice of renewal 1 month prior to the expiry of the EC (if applicable) and up to the parties to mutually agree on the terms and conditions that would apply to the renewed term to be agreed/signed by them before the expiry of the EC. Further, the DPO made factual finding that the Contract Renewal Documents were nothing more than Lim’s/Stewart’s recommendations which were not considered or formalised in accordance with the procedures prescribed in the contractual framework binding on the parties and/or with the VPN approval system as known to Lim/Stewart and C (see paragraphs 27(i) and 29 above). In the absence of contractual duty/obligation on the part of D to renew the EC, I fail to see how the duty of good faith would arise. This explained why Mr Ng conceded that C had to succeed on Grounds A and B before Ground D could get off ground. But having failed on Grounds A and B, there was no merit to Ground D.

189.  Next, although C’s II Subs labelled Ground D as DPO’s failure to investigate “C’s claim that D had the contractual obligation of good faith”, Mr Ng’s submissions meandered to the “implied obligation of mutual trust and confidence between employer and employee”. The Court of Appeal in Tadjudin Sunny said as follows:

“58. It is now well recognized, at least in the United Kingdom and in this jurisdiction, that there exists an implied obligation of mutual trust and confidence between employer and employee: see Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1998] 2 AC 20 (HL); Evelyn Semana Bachicha v Poon Shiu Man Henry [2000] 2 HKLRD 833 (CA); Ko Hon Yue v Liu Chung Leung and Others [2011] 1 HKLRD 733 (CA).

59. The obligation of mutual trust and confidence between employer and employee has been said to be “an overarching obligation implied by law as an incident of the contract of employment”: see Johnson v Unisys Ltd [2003] 1 AC 518 at paragraph 24, per Lord Steyn. In the same case, Lord Hoffmann said, at paragraph 35, that the contribution of the common law to the employment revolution has been the evolution of implied terms in the contract of employment, of which the most far reaching is the implied term of trust and confidence.^[297]

60. Nevertheless, the majority of the House of Lord (Lord Steyn dissenting on this issue) held that this implied obligation of mutual trust and confidence cannot be utilised to form the platform to allow an employee to recover damages for loss arising from the manner of his dismissal, essentially for two reasons. First, it was said that the obligation of trust and confidence is concerned with preserving the continuing relationship which should subsist between employer and employee and thus it is not appropriate for use in connection with the way that the relationship is terminated (see paragraph 46 per Lord Hoffmann, and paragraph 78 per Lord Millet). Second, it was said that it would be an improper exercise of the judicial function to develop the common law to permit such claims to be made in the light of the evident intention of Parliament that they should be heard by the industrial tribunal and the remedy should be limited in application and extent as provided for in Part X of the Employment Rights Act 1996 (see paragraphs 55 to 58 per Lord Hoffmann, and paragraph 80 per Lord Millet).” (my emphasis)

190.  But, as Mr Chain pointed out, it was important to distinguish between the concept of good faith and the concept of trust and confidence for they were different concepts. I have explained the latter concept as follows in Weng Chi-cheong v Barclays Capital Asia Limited:^[298]

“48. …… P’s pleaded claim rested on breach of an implied contractual term, ie D’s implied duty of mutual trust and confidence ……

……

(b) A claim for breach of the implied duty of mutual trust and confidence is a purely contractual claim based on breach of an implied term of contract, and the breach being alleged here was D driving P out of his employment.^[299] If such breach is proved, it allows the employee to recover damages to the extent that “[the employee] suffered any additional pecuniary loss which is not too remote as a result of the [employer’s] breach of the implied trust and confidence term by driving [the employee] out of [his/her] employment ......”,^[300] which in an appropriate case may include damages for financial loss flowing from damage to reputation.^[301]”

191.  In Semana Bachicha, Ribeiro JA (as he then was) stated at page 844 that what Malik (see footnote 301 above) “…… stresses is that the remedy in damages for breach of a contract of employment is not restricted to damages for wrongful dismissal. The general measure of damages rules in the law of contract are applicable to other types of breaches giving rise to other types of pecuniary loss ……” In Malik, the employee upon termination by the employer (who had an implied obligation not to carry on a dishonest or corrupt business) recovered “stigma compensation” for reputational loss by showing it was reasonably foreseeable that in consequence of the employer’s corruption there was a serious possibility his future employment prospects would be handicapped.^[302] Such principles were applied in Grant David Vincent Williams v Jefferies Hong Kong Limited.^[303] There the plaintiff (employee) was summarily dismissed by the defendant (employer) for gross misconduct for one issue of a marketing newsletter collated/edited by the employee that contained some inappropriate reference but was distributed before it had been reviewed/approved. DHCJ Seagroatt held that the circumstances of the employee’s dismissal were unfair, and that there was no justification for such dismissal. The learned judge also held that “[the] way the [employer] handled the matter of the [employee’s] dismissal, the explanatory e‑mail and the excision of the [employee] from all contact with and association with the company was ...... in clear breach of the implied duty of trust and confidence which they owed him”. He awarded the employee contractual loss of earnings and benefits, damages for breach of the implied term of trust and confidence (which essentially was “stigma compensation”), etc.^[304]

192.  It was clear from the above that that a breach of the duty of mutual trust and confidence is a “purely contractual claim based on breach of an implied term of contract”. But C’s complaint about D’s non-renewal of the EC was not a breach of the terms of the existing EC for there was no contractual duty or obligation to renew the EC (as the DPO found and I upheld upon rejection of Grounds A and B). That being the case, C would not be entitled to further damages that were separate from those flowing from the termination. In any event, C’s claim in the Claim Form as amended was for damages arising from wrongful termination of the renewed employment contract (see paragraph 1 above) rather than any other standalone heads of damage that fell under the auspices of the duty of trust and confidence. In my view, there was no merit to C’s assertions concerning the duty of trust and confidence.

193.  At the NOM Hearing, Mr Ng submitted it was a breach of trust and confidence for D not to renew the EC, but renewal of the EC was outside the existing EC for it contemplated entering into another employment agreement upon natural effluxion of the existing EC. But as explained above, the duty of mutual trust and confidence between employer and employee existed within the context of a contract of employment, ie within the existing contractual relationship. It was on such basis that if the employer breached his duty of trust and confidence in some way within the context of the current contractual relationship with the employee, then damages under the general measure might sound. As Mr Chain asked rhetorically, how could one breach an implied duty in relation to performance/discharge of obligations under a contract of employment by not entering into a second/separate renewed contract of employment? In my view this could not have been any breach of duty of trust and confidence in light of the DPO’s No Agreement, Framework Non-Compliance and No Authority Findings which I upheld upon rejection of Grounds A and B, and when clause 3 of the EC expressly provided that the option of contract renewal was to be exercised at D’s discretion, which provision was binding on C.

194.  Ground D failed given Mr Ng’s concession that it would upon failure of Grounds A and B, but for all of the above reasons, I also agree with the DPO that substantively the allegations of breach of the obligation of good faith and/or breach of duty of trust and confidence would not take C’s case any further. I reject Ground D.

XI.  GROUND E

195.  In C’s I Subs, C claimed the DPO erred in law in failing to properly investigate, address and deal with or sufficiently investigate, address and deal with C’s other claims of discrimination, victimisation, abuse of process, malice or gross negligence etc against D that underlied D’s conduct to terminate their employment relationship even though C expressly made such claims in his pleadings and submissions filed in the Tribunal,^[305] and gave evidence on these claims at the Trial before the DPO.^[306] In putting forward such Perfected Ground, Mr Ng turned to my observations in paragraph 24 of the Leave Decision which noted C contended inter alia the DPO failed to investigate, address and deal with or sufficiently investigate, address and deal with his claims of discrimination, victimisation, abuse of process, malice or gross negligence against D that allegedly underlined D’s conduct in terminating their employment relationship. But as explained in paragraph 72 above, the threshold requirement for granting leave to appeal was whether the intended appeal had arguable grounds, and it remained to be seen at the appeal proper whether or not C could establish Ground E to upset the DPO’s factual findings on point of law.

196.  In C’s II Subs, Mr Ng submitted that in the circumstances there was thrust upon the DPO the duty to properly investigate C’s contentions of victimisation, discrimination, abuse of process, malice or gross negligence etc in footnote 305(a) and (c) and 306(a)-(b) above, but she failed to do so, brushed aside these matters and simply stated she was not there to adjudicate any matter that related to discrimination as follows,^[307] which was particularly troublesome since C’s contentions of victimisation, discrimination, abuse of process, malice or gross negligence etc were directly related to C’s compliant that D was in breach of its contractual obligation to act in good faith and its implied duty of trust and confidence:

“CLAIMANT: Well, it’s not – it’s the malice.

COURT: I cannot …

CLAIMANT: So I’m trying to …

COURT: I cannot see malice.

CLAIMANT: There is discriminatory action.

COURT: I cannot either see discriminatory actions. You have to prove it. And yet again, this court is not here to adjudicate any matter which related to discrimination. I will only look into contract and see whether there’s any breach and what would be the damages. That’s it and that’s all. This is my jurisdiction here.

……”

197.  At the NOM Hearing, Mr Ng spent quite some time to explain to the court the incident canvassed in footnote 305(b), (e), (f) (g) and (h) above that concerned the assault on Stewart by Ooi (referred to in footnote 305(b) above) that resulted in the prosecution, conviction and sentence of Ooi (even though this incident was not canvassed in C’s II Subs for Ground E):

(a)	On 19 July 2010, Stewart had a special meeting with Chow, Goh, Ooi and another captain in Chow’s office, and he brought up the investigation results that he found about Ooi’s alleged wrongdoing. According to Stewart, after Chow and Goh left, Ooi became sensitive, lost his temper, argued the results with Stewart, and in the heat of the argument approached and punched Stewart with fists. The other pilot moved in between them, but Ooi was outraged/ violent and continued to attack Stewart and pushed him to the ground. Later, Goh returned to the room and stopped the commotion just in time. Stewart went back to his own office. He felt pain and discomfort, and sought medical treatment the following morning. Whilst at the hospital, he made a report to the police. On 28 October 2010, Stewart gave the police a statement with the above account of the assault incident.[308]
(b)	A few days later on 24 July 2010, C sent email to D’s then (Acting) CFO Chow (with copy to D’s then COO Lim and D’s then DCS Goh) titled “Woon my humble advice and feedback” to complain about the assault incident and breach of D’s code of conduct:[309] “Dear Capt Chow, I would like to tender my humble advice and feedback that breaking company misconduct codes is a serious matter requires immediate suspension regardless of how high the office is and how indispensable the person may be, and even more so done in the course of duty such as in company premises and discussing company matters regardless of the time. This would open our company to Law suits if any injustice becomes apparent with claims from the victim. An example is the former GMF Gilson Bennetti’s case. Correct me if I am wrong, there appear to be misconduct, incompetence and insubordination. All the staff out there including HKE are watching us to see if there is bias/corruption that such behaviour escapes suspension and/or Company inquiry. Down the line feed back is important. ……” Mr Ng submitted that although the name of the captain who committed the assault was not mentioned in the above email, given its temporal closeness to the incident in (a) above, the email clearly referred to such incident of Stewart being assaulted by Ooi. It was Mr Ng’s submission there was evidence that after C sent such email “…… that [D’s] senior management sacked him or did not renew his employment contract because of what he did, and the evidence ……” (see (c) and (f) below).
(c)	On 4 January 2011, D’s then GMT Stewart wrote to C saying inter alia that “…… Simon said that VP Sun may not renew your contract if you did not help in stopping the Police from investigating. He also said that he cannot hire me as TRI in HKE if I do not back off”.[310] Mr Ng submitted this contemporaneous document showed the non-renewal of C’s contract was because of what C did in response to the assault of Stewart by Ooi (see (f) below).
(d)	Then the police wrote to inform Stewart on 31 January 2011 that “…… one male offender was arrested and this case was brought to Tsuen Wan Magistracy and concluded on 2011-01-12. The offender was bound over to be of good behavior and to keep the peace by abstaining from using violence against you, or attempting to commit any criminal act involving the use of violence against any person for 24 months ……”[311]
(e)	Paragraphs 53 and 55 of the appendix to C’s statement of claim dated 31 May 2017 and C’s reply to D dated 9 August 2017 stated as follows:[312] “53. …… EX RS5 had shown that Captain Kenny Ooi Yeen Chee was bound over for 24 months for his violent behavior of assault and battery of his Superior Officer, the then GM Training (Captain Richard Stewart), by the HK Magistrates, and got away with murder (in the company) so to speak and had his contract renewed and now into the permanent or Continuous Contract. His criminal record was also being registered with the HKCAD. He was warned by the Judge that if he were to commit a further similar crime, he would be sent right into jail. Why must [D] keep such a liability? Did [D] not know that if he had committed a further similar crime and go to jail, the company’s plans and operation would be affected and other crew members inconvenienced, etc. It was questionable that the then DFO [Chow] had failed to act on the complaint by the assault victim (EX RS4, EX RS5), [Stewart] to have [Ooi] suspended immediately pending investigation in accordance with [D’s] Company procedures on Disciplinary Inquiries, let alone getting [Ooi’s] contract terminated after the latter’s commission of a violent crime reported to [D] (EX RS3, Question 4, Answer 4), where Company Policy recommended immediate dismissal as spelt out in the Company’s Administrative Manual. Besides breach of [C’s] said contract, evidence of victimization, bias, injustice, unfairness, no reasonable cause of not renewing [C’s] said Contract, etc appeared strong. Thus, [C] prays that this Honourable Court gives justice to [C]. …… 55. …… [DPO] had allowed [D] to copy all the documents from the Court file, which had substantial information on the suspicious case of [Ooi] and the then DFO Chow … this HR [human resources] Department leader Mr Stanley Yau …… must have read [C’s] file when all documents were presented personally by [C] to his office through his GM Mr Patrick Lai on 7th July 2017 …… Would Mr Yau appeal for an instant dismissal action against [Ooi] just on the serious charge of insubordination, what’s more with the added criminal charge of assault of his superior officer causing bodily harm? Mr Yau’s opinion is very relevant and important in this case as it would give strong inference that he may not follow the inaction or outright violation of [D] Company’s Policy and Procedures, like whoever had dismissed [C] early before the end of [C’s] said contract without any just cause. [C] was very conversant with [D] Company Inquiry procedures as [C] had been the defender of Union members on such Inquiries many times, and [C] had on 7th Aug 2010 sent a letter of reminder to the then DFO Captain Chow SY who had just plainly ignored [C’s] advice (EX KO1)) …… Mr Yau’s indication as to the direction of this case would have a strong bearing on [C’s] case of reinstatement to Continuous Contract and his rhetoric if any in the Press Statement on Company wanting talent would be taken seriously by all the staff of [D] Company, if positive action through his initiative appears. Here there was a dichotomy. On the one hand, a Criminal got his Contract renewed by [D] and a loyal law-abiding employee ([C]) had his contract terminated early …… All the staff in [D] Company are still waiting for justice to be carried out in the case of assault of a Superior Officer. [C] is still awaiting justice from [D] for reinstatement. There were rumours that the father of [Ooi] “had bought” some of the Management of [D] Company …… [C] is a righteous person, why should he be caught in the crossfire, is it not the duty and right time (upon receipt of this Court documents) for this [D’s] Human Resources Director to give justice without even this Honourable Court’s intervention now that the perpetrator/s of early dismissal if any and/or of the breach of [C’s] said Contract, had all left the [D] Company?”
(f)	Reply8 of C’s reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017 stated as follows:[313] “…… On 4 Jan 2010 09:42 Page 1, then [GMT Stewart] had informed [C] in 2nd paragraph that “Simon Wu (Director of Operation HKE where the recent scandal hit the SCMP and the public in flight cancellations, resulting its CEO Andrew Cowen got sacked as he was the HKCAD Accountable Executive Post Holder of HKE) said that VP Sun may not renew your contract if you did not help in stopping the Police from investigating. He also said that he cannot hire me as TRI in HKE if I do not back off” [see (c) above]. …… [C] would treat this information herein above by DO Simon Wu and GM Stewart (C16) as a rumor. Respectfully what had [C] done to be victim of such Malicious Conspiracy or Fraud if any? When the Police had received a common assault complaint (C32) on 20th July 2010 against [Ooi] from the victim [GMT Stewart] ([Ooi’s] superior), Respectfully, how could [C] in any way to stop Police investigation which resulted in a criminal conviction against [Ooi], the “blue eyed boy” of the then DFO Chow and/or perhaps VP Sun? C17, C16 middle paragraph to refer. Respectfully, was it wrong that [C] had advised [D] (DFO Chow) that such serious matters should not be covered up? (C12). [C] was and is civic minded and an upright person who should not be pressurized by VP Sun, DFO Chow nor anyone to abet any unscrupulous people with criminal behavior ([Ooi] being convicted by the Magistrates Court of Hong Kong) to cover up such criminal act of [Ooi] and put [D] to shame as all the staff were watching the event and had remained silent that these people got away with murder so to speak with an effective cover up. HKCAD was also being informed of such cover up and had stop [Ooi’s] application for authorize personnel in Training. Latest rumours was that [D] had also turned him down on [Ooi’s] application for Training and Management positions. ……” Mr Ng submitted that C expressly referred to this incident as the reason why the EC was not renewed, which would go to support C’s case for Ground E as well as Ground D.

198.  D disputed Ground E, and in D’s I Subs suggested C’s unintelligible ranting and raving of discrimination, victimisation, abuse of process, malice, and/or gross negligence etc were all in context of (and added nothing to) his claim for damages for breach of the EC^[314]:

“COURT: How does it help you?

CLAIMANT: It helps me prove that I have informed the authorities as well as informed the company of the malicious wrongdoing and then they had continue to refuse and repeatedly, maliciously to victimise me of disqualification and, also discriminatory and all the unlawful action or inaction so that I don’t get my qualification, don’t get my qualification.

COURT: Then what is your damages?

CLAIMANT: My damages would be that they have caused me to be sacked but they call it 4 March …

COURT: This is …

CLAIMANT: … contract.

COURT: This is only your speculation.

CLAIMANT: Well, I have tried to give you evidence for this submission …

COURT: But, even if they terminate you with whatever malice, as alleged by you, your damages would only be calculated on the basis of contract.

CLAIMANT: Okay.

COURT: We will have to go back to the contract and to see what would be the damages.

CLAIMANT: Okay.

COURT: Do you understand?

CLAIMANT: Yes, okay.”

199.  D’s II Subs went on to say that in respect of C’s claims of victimisation, abuse of process, malice, discrimination etc, essentially his factual complaint was that they culminated in the termination of his employment and non-renewal of his EC, which meant these allegations of victimisation, abuse of process, malice, discrimination etc were part and parcel of (and therefore added nothing further to) his case on the termination/non-renewal of the EC. It was said this was borne out by C’s stance at the Trial:^[315]

“CLAIMANT: No, it’s – defendant has given all the statements, pre-trial … (indistinct) argue against that. So I’m going to prove it to your judge here that they have malice, they have conspiracy and they have been victimisation and discrimination and also unjust …

COURT: I’m not here to judge any discrimination case. Also, IO don’t have to adjudicate whether they terminate you with malice, as long as they are not breaching their contract, breaching the law. They have the …

CLAIMANT: This …

COURT: They have all the right to terminate the contract as long as they comply with the law, with the contract signed with you. There’s a termination clause there.

CLAIMANT: As far as I’m concerned, the termination …

COURT: I’m telling you the law.

CLAIMANT: Yes.

COURT: I’m not consider whether – what is your concern or what is your understanding or belief but this is the law. We have the contract here which governs the relationships of the parties. Which governs the employment relationships, how it can be continue, how it can end. This is the contract here. How can I close my eyes against the contract and look at some other matters? They can – they do it according to the contract terms.

CLAIMANT: We have two issues here. The issue here, they claim that they breached the contract of the time of 4 March but my contention here …

COURT: So that’s exact – exactly. So look at the damages that you should get according to – in accordance with their concessions that they breached the law, they breached the contract.

CLAIMANT: My contention here is that they have been very malicious in terminating my employment not according to the contract.

COURT: Where?

CLAIMANT: The malicious …

COURT: Where in their part they are not doing it in accordance with contract?

CLAIMANT: The part that they have get rid of me on 4 March 2011 not according to the contract; it’s according to their dismissal payment … (indistinct) I was sacked.

COURT: Can you go back to your employment contract, please? There’s a termination clause there.

CLAIMANT: Yes, the termination clause is still…

COURT: Are you saying that the termination clause is not a valid clause?

CLAIMANT: The termination clause if the contract …

COURT: Yes.

CLAIMANT: … has not cut in. Has it cut in?

……”

200.  Having carefully considered C’s and D’s respective submissions, I am satisfied that C’s claims of victimisation, abuse of process, malice, discrimination etc were not advanced as separate and standalone causes of action, but were part and parcel of his case on the termination/non-renewal of the EC and/or put forward in support of Ground D, but I have rejected C’s Perfected Grounds in relation to the same (ie Grounds A-D). In any event, even if C did put forward separate and standalone claims for victimisation, abuse of process, malice, discrimination, conspiracy^[316] etc, they would not have assisted him because, as Mr Chain submitted, some were not cause of action known to law (eg malice), some had no foundational basis (eg D had not invoked any judicial process to ground any claim for “abuse of process”), some were outside the jurisdiction of the Tribunal (eg (a) a claim in discrimination or victimisation (which should be brought in the District Court),^[317] and/or (b) a claim for conspiracy^[318]). I am also satisfied that C’s allegations of victimisation, abuse of process, malice, discrimination, gross negligence, conspiracy etc did not cause the losses he sought to claim, ie losses that allegedly stemmed from the termination/non-renewal of the EC rather than any separate and standalone claims for victimisation, abuse of process, malice, discrimination, conspiracy etc. In such context, the DPO had adequately considered the matter, and could not be expected to investigate at great length into these claims that either had no foundational basis or beyond the Tribunal’s jurisdiction. In all the circumstances, I reject Ground E.

XII.  FURTHER GROUND

201.  In C’s I Subs, C claimed the DPO erred in her duty to investigate by going to the extent of cross-examining C as if she were the lawyer for D.^[319] This Perfected Ground was not canvassed in C’s II Subs at all. But at the NOM Hearing, Mr Ng maintained such Perfected Ground, and suggested that if this court were to read the Transcript, this court would gain the impression that the DPO was in fact putting questions to cross-examine C, which was different from her attitude when Thong gave evidence. On the other hand, in D’s I Subs, D claimed the DPO’s questioning of C was fully within the realms of proper conduct in the circumstances of the case.^[320]

202.  The burden was on C to establish the vitality of her grounds of appeal, and it was not for this court to go through the Transcript to find out for itself whether this Perfected Ground was made out. However, since C’s I Subs referred to various extracts from the Transcript, I shall deal with them below:

(a)	Mr Ng relied on the DPO’s questioning of C as recorded in the Transcript at page 23A-B, K and L-M and his submissions in relation thereto for Ground A (see paragraph 80(a) above). But upon reading pages 22-24 of the Transcript, it was clear the DPO was clarifying C’s answers to D’s cross-examination and was fairly drawing C’s attention to the express terms of the EC which he signed and the acknowledgment of the 2008 COS which he also signed. I see nothing improper in this line of clarification by the DPO (which was within the ambit as explained in Wong Chi Yung in footnote 320 above), and repeat my views in paragraph 100 above. Further, given my rejection of Ground A, there was no merit in C’s complaint in this respect.
(b)	Mr Ng relied on the exchange between the DPO and C recorded in the Transcript at pages 120R-V and 121B-R. However, C completed his evidence at 10:33am on 18 October 2018.[321] C’s cross-examination of Thong commenced shortly after 11:34am on the same day[322] and was adjourned at 1:01pm.[323] When the Tribunal resumed at 2:36pm on the same day,[324] there was exchange between C and the DPO regarding whether to interpose Goh (who had arrived at the Tribunal) to give evidence first and also regarding C’s claim. This was not cross-examination of C (as apparent from the index for Transcript at G/237 which confirmed “discussion re claim” at pages 119-127), and in fact Goh started to give evidence after such exchange between C and the DPO.[325]
(c)	Mr Ng relied on C’s oral closing submissions recorded in the Transcript at page 16S-U (see paragraph 306(b) above). But as Mr Chain rightly pointed out, the aforesaid extract from the Transcript consisted entirely of C’s oral closing submissions and was not cross-examination at all.

203.  I agree with D there was no merit in this Perfected Ground in paragraph 7 of C’s I Subs, which I therefore reject.

XIII.  CONCLUSION

204.  For all of the above reasons, C’s NOM and/or appeal against the DPO Judgment as well as the Summons are dismissed.

205.  There is no reason why costs should not follow event. I therefore grant a costs order nisi that C shall pay D costs of and occasioned by (a) the NOM and/or appeal against the DPO Judgment, (b) the Summons and (c) C’s Aff and the argument on its admissibility, all of which with all costs reserved (if any) to be taxed if not agreed with certificate for two counsel, and C’s own costs be taxed in accordance with Legal Aid Regulations.

206.  Mr Chain submitted that given the value of C’s claim exceeded $32,000,000 and further given disproportionately voluminous documents were generated by him, certificate for two counsel was justified. Mr Ng disagreed. In my view, two counsel was justified because of the complexity caused by C with his voluminous 1^st, 3^rd and 4^th Grounds and the metamorphosis of his contentions with a number of new matters raised by way of C’s I Subs, C’s II Subs and Mr Ng’s oral submissions, and I am sure Mr T Ng was of assistance to Mr Chain in coming up with D’s prompt response to those matters, including references to appropriate materials in the Hearing Bundle. I also bear in mind that C’s Aff was a late document filed/served at the brink of the NOM Hearing, which required D to scramble a response to oppose the same.