LEE CHICK CHOI v. BEST SPIRITS CO LTD

HCMP 401/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 401 OF 2015

(ON AN INTENDED APPEAL FROM HCLA NO. 19 OF 2013)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an application by the claimant for leave to appeal against the judgment of Deputy High Court Judge Bebe Chu [“the Judge”] on 21 October 2014 refusing to grant a stay of execution of the award of the Labour Tribunal of 10 October 2011. By that award, the Tribunal rejected all the claims of the claimant and ordered him to pay costs in the sum of $130,353.

2.  The case has a chequered history.  It suffices for present purposes to give a brief account of the proceedings since the award of 10 October 2011.  The claimant had applied to the High Court for leave to appeal against that award.  On 6 June 2013, that application for leave was refused by Mimmie Chan J.  Then, on 9 August 2013, he applied to the Tribunal for a review of the costs order.  That was refused by the Tribunal on 16 August 2013.  After that, he applied on 25 October 2013 for leave to appeal against the refusal to review.  On 15 January 2014, he applied for a stay of execution of the award, which he later explained was sought pending the hearing of the leave application.  The leave application was only heard on 11 November 2014 separately from (and after) the application for stay of execution.

3.  It was in the context of that pending application for leave that the application for stay of execution came before the Judge on 21 October 2014.  As mentioned, that application was refused.  Leave to appeal against that decision was also refused by the Judge on 11 February 2015.

4.  In the meantime, after hearing the application for leave to appeal against the refusal to review on 11 November 2014, the Judge also refused to grant leave on 18 November 2014.  By reason of section 32(3) of the Labour Tribunal Ordinance, the refusal of leave is final.

5.  We would mention that there was an application for leave to appeal against the Judge’s assessment of costs for the stay application on 18 November, which application was also dismissed by the Judge on 11 February 2015.

6.  Since leave to appeal had been refused on 18 November 2014, there is simply no basis for any grant of stay of execution pending appeal.  Despite that, the claimant still pursued his application for leave to appeal against the refusal of stay.  After the refusal of leave on 11 February 2015, he took out the summons to this court on 16 February 2015.

7.  Under Section 35A of the Labour Tribunal Ordinance Cap 25, a party dissatisfied with a decision of the Court of First Instance may, within 7 days after the date of decision, apply to the Court of Appeal for leave to appeal.  It further provides that the Court of Appeal may grant leave if it considers that a question of law of general public importance is involved.

8.  Section 35A(2)(a) requires leave to appeal be made in the prescribed form setting out the question of law.

9.  In the present case, the application of the claimant is irregular in that it did not set out any question of law which is of general public importance.  We have examined the draft notice of appeal.  They do not set out any questions of law of general public importance. The complaints to the Office of Privacy Commissioner and the findings by that office are, in our view, totally irrelevant to the issues that concern the court in the application for stay of execution.  Nor do we find such matters to be relevant to the questions that the Tribunal had to decide in awarding costs against the claimant.  In any event, the application for review should not have been used as a platform for re-opening the dismissal of the claimant’s claims on 10 October 2011 for which leave to appeal had been refused as long ago as 6 June 2013.

10.  We have no doubt that the application cannot satisfy the criteria in Section 35A.  Further, in view of the refusal of leave to appeal on 18 November 2014, the application for stay of execution pending appeal is doomed to fail.  The Claimant should not have pursued his applications after 18 November 2014.  We dismiss the summons of 16 February 2015.

11.  In the circumstances, we are also of the view that the application is totally without merit and we order pursuant to Order 59 Rule 2A(8) of the Rules of the High Court that no party may request the determination to be reconsidered at an oral hearing inter partes.

12.  The Defendant has, through their solicitors, lodged representations opposing leave in accordance with Order 59 Rule 2A(4)  of the Rules of the High Court.  As the application is utterly devoid of merit in view of the refusal of leave on 18 November 2014, we order the Claimant to pay the costs of the Defendant in opposing leave on indemnity basis.  We provisionally fix such costs at $50,000 in view of the volume of the documents filed by both parties and the reasonable time spent on preparation, perusal and consideration of the same.  If any party wishes to vary the quantum of this costs order, he may apply by writing to this court (with a copy served on the other party) within 7 days for variation together with his submissions on the proper quantum, in which event the other party shall respond in writing within 7 days thereafter.  This court will then decide the quantum on paper.