NGAU WING CHI v. DAN DAN HEALTH (WHAMPOA) LTD AND ANOTHER

HCLA 31/2025

[2025] HKCFI 6290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 31 OF 2025

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 315 OF 2025)

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DECISION

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A. Introduction

1.  On 10 October 2025, deputy adjudicator Jennifer Ng (as she then was)  of the Labour Tribunal (the “Deputy Adjudicator”)  dismissed the Claimant’s claims against the 1^st and 2^nd Defendants, and ordered her to pay the 1^st Defendant’s costs in the proceedings, assessed at HK$9,000.

2.  The Claimant seeks leave to appeal against the order made by the Deputy Adjudicator.

B.  Material Background

3.  The Claimant is a registered pharmacist.

4.  The Claimant sued the 1^st Defendant (ie Dan Dan Health (Whampoa)  Ltd)  and the 2^nd Defendant (ie Dan Dan Mall Health (Whampoa)  Ltd)  on various matters.  As of the time when the trial before the Deputy Adjudicator took place, the Claimant’s claims were partially settled, and the outstanding matters to be resolved were as follows:-

(1)  the Claimant’s claims against the 1^st Defendant for (i) liquidated damages in respect of breach of contract in the amount of HK$144,000 (HK$48,000 per month x 3 months); and (ii)  salary for attending examination in the amount of HK$67,064.51.

(2)  the Claimant’s claims against the 2^nd Defendant for (i) outstanding salaries from 1 August to 11 December 2024 in the amount of HK$215,564.51; (ii)  notice in lieu of termination in the amount of HK$49,500; and (ii)  payment in lieu of holidays in the amount of HK$4,139.63.

5.  In the proceedings below, there was a hotly contested dispute as to the entity that actually employed the Claimant.

6.  As pointed out by the Deputy Adjudicator in her reasons for judgment, the 2^nd Defendant simply did not exist at all, and the Companies Registry did not have any record showing that there was a company named “Dan Dan Mall Health (Whampoa)  Ltd”.

7.  Having considered the written employment agreement of the parties, the contemporaneous evidence (including the WhatsApp messages), the parties’ evidence, the objective circumstances, and the inherent probabilities, the Deputy Adjudicator found that the Claimant’s employer was the 1^st Defendant (ie Dan Dan Health (Whampoa)  Ltd)  and that the Claimant should know that this was the case.

8.  In this connection, the Deputy Adjudicator found that:-

(1)  The 1^st Defendant was part of a group of companies that carried on business under the name of “Dan Dan” (the “Dan Dan Group”).

(2)  The Dan Dan Group consisted of various companies whose names contained the words “Dan Dan Mall” as well as the words “Dan Dan Health”[1].

(3)  Against this background, when the staff of the Dan Dan Group prepared the Claimant’s employment agreement, they inadvertently inserted the word “Mall” between the words “Dan Dan” and the words “Health (Whampoa)  Ltd”.

(4)  This was an inadvertent oversight and/or clerical error. The true intention was that the contractual entity that employed the Claimant was the 1^st Defendant (ie Dan Dan Health (Whampoa)  Ltd).

9.  The Deputy Adjudicator also criticized the Claimant for raising allegations of fraud.  In her view, these allegations were neither supported by the evidence nor justified.

10.  As to the Claimant’s claims against the 1^st Defendant for liquidated damages and salary for attending examinations, the Deputy Adjudicator pointed out that the crux of the parties’ dispute was whether the Claimant had entitlement thereto under clause 9 of her employment agreement, which reads as follows:-

“僱員牛穎之承諾工作至 Dan Dan Mall Health (Whampoa)  Limited[2] (之黃埔分舖，成功於政府獲批發可從事零售毒業業務牌照（俗稱：房牌)，才能離職。如未能遵守承諾，需支付三個月之薪金，合共港幣$144,000作違約之賠償。但若未能申請到牌照，是因為其他因素而不是因為僱員牛穎之辭職所致，則不需作出賠償。”

11.  The Deputy Adjudicator took the view that clause 9 of the employment agreement does not support the Claimant’s claims at all.

12.  Accordingly, she dismissed the Claimant’s claims against the 1^st Defendant (who was her employer)  with costs.

C.  Legal Principles

13.  Under section 32 of the Labour Tribunal Ordinance (Cap 25), a party who is dissatisfied with an award of the Labour Tribunal may apply to the Court of First Instance for leave to appeal on the grounds that the award is erroneous in point of law or outside the jurisdiction of the Labour Tribunal.  In considering whether to grant leave to appeal, the court must be satisfied that the intended grounds of appeal are genuine grounds based on errors of law, and that there is an arguable ground of appeal: see Chu Yeut Lin and Others v Everbright Groups Limited [2024] HKCFI 1626 at para 5 (per Mimmie Chan J); Li Lam v Hoilung Group International Ltd [2025] HKCFI 5896 at para 5 (per Mimmie Chan J).

14.  As pointed out in Karchoud, Leila Bent Mohamed v The Incorporated Trustees of the Islamic Community Fund of Hong Kong (HCLA 61/2001, 30 January 2002)  at para 6 (per DHCJ Lam, as he then was), if a ground is dressed up as an error of law whilst in substance it is a challenge to a determination on questions of fact, leave to appeal should not be granted.

15.  It is important to bear in mind that findings of facts made by the Labour Tribunal are generally immune from challenge, and the Court of First Instance may only intervene if (a)  the findings were made without regard to the relevant factors; (b)  the findings were made without evidence; or (c)  there was a failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained: see Mak Wai Man v Richfield Realty Ltd (HCLA 28/2015, 30 October 2015)  at para 16(3)  (per B Chu J).

16.  Insofar as the statutory duty to investigate is concerned, under section 20(3)  of the Labour Tribunal Ordinance, a presiding officer of the Labour Tribunal has a duty to “investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party”. In this connection:-

(1)  The courts have made it clear that such a duty is not absolute, and that the extent of the inquiry to be made by the Labour Tribunal must depend on the individual circumstances of each case.  Due regard should be given to the issues in dispute in the case, the materials placed before the Labour Tribunal by the parties themselves, and any incontrovertible evidence before the Tribunal: see Chan Suk Bing Angie v Harbour Phoenix Ltd [1992] 2 HKC 459 at para 7 (per DHCJ Jerome Chan, as he then was).

(2)  In Chan Suk Bing Angie at para 8, DHCJ Jerome Chan (as he then was)  pointed out that:-

“It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint 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 of fact must be given all due regard before such a complaint can be upheld. Further, not only is the total absence of investigation a ground for complaint, totally inadequate or useless investigation which amount to no investigation at all will also suffice. It is, however, never sufficient for the appellate court to conclude that it would have preferred to approach the matter differently, or that there is a better way to investigate the claim. It is not open to the appellate court to prefer its own views to that of the presiding officers as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.”

D.  Deliberation

17.  The Claimant has filed lengthy written submissions, which are not easy to comprehend.  In my view, the Claimant’s complaints can be succinctly summarized as follows:-

(1)  The Deputy Adjudicator erred in finding that she should have known that her employer was the 1^st Defendant.  The Deputy Adjudicator should not have re-written the contract between the parties, and should not have overlooked the 1^st Defendant’s duty of care.  The Deputy Adjudicator also went beyond the jurisdiction of the Labour Tribunal.

(2)  The Deputy Adjudicator erred in finding that she had no entitlement to sue the 1^st Defendant.  The Deputy Adjudicator overlooked her legitimate interests as well as the implied terms of the employment agreement. 

(3)  The Deputy Adjudicator failed to discharge her duty to investigate properly, in that she assumed the role of the 1^st Defendant’s advocate.  She was neither fair nor impartial.

(4)  The Deputy Adjudicator should not have awarded costs in favour of the 1^st Defendant.  Further, the quantum of costs awarded in favour of the 1^st Defendant was exaggerated, and it was uncertain as to how the quantum was computed.

D1  The Claims against the 2^nd Defendant

18.  As evidenced by the public records of the Companies Registry, the 2^nd Defendant (ie Dan Dan Mall Health (Whampoa)  Ltd)  does not exist at all.  I cannot see why the Claimant would insist on suing an entity that does not exist.  There is no substance in the Claimant’s suggestion that the 1^st Defendant should take steps to incorporate the 2^nd Defendant. It appears to me that the Claimant is simply chasing shadows, and her complaint in this regard is a complete red herring.

19.  In any event, I am unable to find fault with the Deputy Adjudicator’s findings that (i)  there was an inadvertent clerical error in the employment agreement and (ii)  the Claimant should know that her employer was the 1^st Defendant.

20.  I cannot see how it can be said that the Deputy Adjudicator went beyond the jurisdiction of the Labour Tribunal.  Whilst the Deputy Adjudicator could not adjudicate a claim that is based on tort, this was not what the Deputy Adjudicator did.  The Deputy Adjudicator merely, in the course of determining the true employer of the Claimant, found that there was an inadvertent clerical error in the employment agreement.  This finding falls squarely within the jurisdiction of the Labour Tribunal.

21.  In my view, the Deputy Adjudicator’s factual findings are unassailable.  She did duly consider and analyze the contents of the written employment agreement, the contemporaneous WhatsApp messages, the parties’ evidence, the objective circumstances, and the inherent probabilities. I am unable to discern any error on her part. The Deputy Adjudicator’s approach to making factual findings and assessing the credibility of the parties’ case was plainly correct.  It is important to bear in mind that an appeal from the Labour Tribunal to the Court of First Instance is not an avenue for re-arguing the case afresh. This court should not overturn the Deputy Adjudicator’s factual findings simply because one may take a different view on the factual matters and evidence.   

D2  The Claimant’s Alleged Entitlement to Sue the 1^st Defendant for (i) liquidated damages; and (ii)  salary for attending examinations 

22.  As regards the claims against the 1^st Defendant, I agree with the Deputy Adjudicator’s view that under clause 9 of the written agreement, the Claimant is not entitled to (i)  liquidated damages and (ii)  salary for attending examinations.

23.  Clause 9 of the written agreement merely provides that:-

(1)  If the Claimant resigns before the Government grants the license (ie 零售毒業業務牌照（俗稱：房牌)), she should pay liquidated damages equivalent to 3 months’ salary in the amount of HK$144,000.

(2)  However, if no license is granted and this is not ascribed to the fact that the Claimant resigns, the Claimant does not need to pay any compensation.

24.  It is obvious that the purpose of clause 9 is to deal with the scenario where the Claimant voluntarily resigns, and the parties agreed that in this scenario, the Claimant should pay liquidated damages of HK$144,000 (which is equivalent to her 3 months’ salary).

25.  Clause 9 does not provide that in the scenario where the employer terminates the Claimant’s employment (which is the scenario in the present case), the employer (ie the 1^st Defendant[3])  should pay HK$144,000 to the Claimant as liquidated damages.  Had this been the parties’ contractual intention, such an obligation on the part of the employer would have been spelt out expressly.  This was not the case.

26.  There is no room for the court to rewrite the contractual bargain of the parties by inserting an implied term that enables the Claimant to bring the claims in question against the 1^st Defendant.

27.  In Nazir Ali v Petroleum Company of Trinidad and Tobago [2017] UKPC 2 at para 7 (which was cited with approval by the Court of Appeal in Lo Yuk Sui v Fubon Bank (Hong Kong)  Ltd [2019] HKCA 261 at para 32), Lord Hughes stated:-

“It is enough to reiterate that the process of implying a term into the contract must not become the re-writing of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated.  A term is to be implied only if it is necessary to make the contract work, and this it may be if (i)  it is so obvious that it goes without saying (and the parties, although they did not, ex hypothesi, apply their minds to the point, would have rounded on the notional officious bystander to say, and with one voice, “Oh, of course”)  and/or (ii)  it is necessary to give the contract business efficacy.  Usually the outcome of either approach will be the same.  The concept of necessity must not be watered down.  Necessity is not established by showing that the contract would be improved by the addition.  The fairness or equity of a suggested implied term is an essential but not a sufficient pre-condition for inclusion.  And if there is an express term in the contract which is inconsistent with the proposed implied term, the latter cannot, by definition, meet these tests, since the parties have demonstrated that it is not their agreement.” (emphasis added)

28.  Applying the legal principles, I cannot see how it can be said that the employment agreement between the parties would be unworkable without the implied term asserted by the Claimant.  I am also not of the view that it would be necessary to insert the alleged implied term in order to give business efficacy to the employment agreement.

29.  The court cannot impose an implied term on the parties simply because it takes the view that it would be fair and equitable to do so. As pointed out, it is not open to the court to rewrite the contractual bargain of the parties.

30.  I am of the view that the Deputy Adjudicator was plainly correct in rejecting the Claimant’s claims against the 1^st Defendant.

D3  Alleged Bias and Partiality

31.  In WSSA v SYH [2024] 4 HKLRD 325 at paras 19 to 21, Kwan VP stated:-

“19. The “reasonable apprehension” test for apparent bias is well settled. “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased” (GM-SA aka DG, M-S v DDPJ (Recusal)  [2022] HKFLR 493 at §10).

20. Bias means a prejudice against one party or his case for reasons unconnected with the merits of the case. The mere fact that a judge had commented adversely on a party would not, without more, found a sustainable objection. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be (In re AZ (A Child)  [2002] 4 WLR 78 at §§56(6)  to (8)).

21. The notional reasonable, fair-minded and informed observer is the sort of person who always reserves judgment on every point until he has seen and fully understood both sides of the argument.  He is not unduly sensitive or suspicious, nor is he complacent.  He knows that fairness requires that a judge must be, and must be seen to be, unbiased.  Although not a lawyer, he is not wholly uninformed and uninstructed about the law in general or the issue to be decided and would sought to be informed on at least the most basic considerations relevant to arriving at a conclusion.  He would be taken to know that adjudicators sometimes say or do things they might later wish they had not without necessarily disqualifying themselves, and may properly adopt reasonable efforts to confine proceedings within appropriate limits.  He would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties taken out of context.”

32.  It is true that the Deputy Adjudicator rejected the Claimant’s case and made adverse comments on her assertions and litigation conduct. However, these adverse findings and adverse comments are not reasons for a fair-minded and informed observer to conclude there is a real possibility or danger of bias. 

33.  I have carefully considered the Deputy Adjudicator’s reasons for judgment as well as the transcripts in respect of the trial.  In my view, the conduct of the Deputy Adjudicator was proper.  What she sought to do was to identify the real issues in dispute and to resolve the same. Although there were occasions where the Deputy Adjudicator interrupted the Claimant during examination, this was done for the purpose of clarifying the evidence and ensuring that the proceedings were under control.  These were appropriate exercises of case management powers. There is no room for this court to intervene. 

34.  I am not of the view that the Claimant has made out her complaint based on bias or partiality.

D4  Costs

Liability

35.  The Claimant suggested that the 1^st Defendant was responsible for the clerical error in the written employment agreement, and this led her to sue the 2^nd Defendant (which was an entity that did not exist).  It appears that the Claimant relied on this suggestion to contend that the 1^st Defendant should be liable for costs.  In particular, the Claimant suggested that as a result of the proceedings, she managed to find out that the 2^nd Defendant did not exist.

36.  The Claimant’s suggestions are neither here nor there.

37.  The Claimant insisted on suing the 1^st Defendant for liquidated damages and salary for attending examinations.  These claims were contested at trial, and the Deputy Adjudicator dismissed the same. Applying the general principle that costs should follow the event, the Deputy Adjudicator was plainly correct in holding that the Claimant should be liable for the 1^st Defendant’s costs.

Quantum

38.  As to quantum, whilst the 1^st Defendant claimed an amount of HK$10,362.34, the Deputy Adjudicator awarded HK$9,000.

39.  The Deputy Adjudicator had wide discretion on matters relating to costs.

40.  In my view, the quantum awarded by the Deputy Adjudicator was not unreasonable.

41.  In any event, the transcripts of the trial show that the Deputy Adjudicator had duly considered the wages of the 1^st Defendant’s representatives who attended the trial and the previous hearings.

42.  I cannot see how it can be said that the Deputy Adjudicator’s exercise of discretion was erroneous.

E.  Disposition

43.  For all the above reasons, I am not persuaded that the Claimant’s intended appeal has a reasonable prospect of success.

44.  I accordingly dismiss the Claimant’s application for leave to appeal.

45.  I make no order as to costs.