ANTHONY MACKAY v. CHI-X ASIA PACIFIC HOLDINGS LTD

HCA 776/2021

[2023] HKCFI 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 776 OF 2021

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D E C I S I O N

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1.  This is the summons of Anthony Mackay, the Plaintiff, (“P”) dated 23 August 2022 (“the Summons”) seeking summary judgment against P’s former employer Chi-X Asia Pacific Holdings Limited (“D”) for, inter alia, various outstanding payments and/or benefits due to P upon termination of his employment.

2.  The following evidence was filed in respect of the Summons:

(1)  Affidavit of P dated 28 July 2022 (“Mackay 1”)

(2)  In opposition: Affirmation of Thierry George Porte (“Porte”) dated 24 November 2022 (“Porte 1”); Affirmation of Arvidas Remeza (“Remeza”) dated 1 December 2022; (“Remeza 1”) and Affirmation of Peter Donnelly Yordan (“Yordan”) dated 1 December 2022 (“Yordan 1”).

(3)  In reply: Second Affidavit of Anthony Mackay dated 16 February 2023 (“Mackay 2”)

THE MATERIAL FACTS

3.  In 2015-2016, P assisted JC Flowers & Co (“JCF”), a private equity firm based in New York to acquire certain assets (“the Chi-X Assets”) from Nomura (“Acquisition”). For the purpose of the Acquisition, JCF incorporated Chi-X Holdings Limited (“CXH”) and D, its subsidiary, in Hong Kong, as the special purpose vehicles holding the Chi-X Assets which included Chi-X HK.

4.  The Acquisition completed on 29 February 2016. P, Yordan and Porte were appointed directors of Chi-X HK on the same day.

5.  P claims that pursuant to an oral agreement on or around 28 February 2016 (“the Oral Agreement”), he became CEO of D on 1 March 2016.

6.  On 29 May 2016, P, Yordan and Porte were appointed as directors of D and CXH.

7.  By a written agreement dated 11 July 2016, P and D entered an employment contract stating that P’s employment as CEO commenced on 1 March 2016 (“the Employment Contract”).

8.  Upon realising that D had not reported P’s employment to the Inland Revenue Department (“IRD”) within the statutory limit, P and D agreed that they should execute another employment contract on exactly the same terms as the Employment Contract save that it state that P’s employment commenced on 1 April 2016. Such an agreement was executed on 1 September 2016 (“the Amended Employment Contract”).

9.  On 11 November 2016, D gave P six months’ notice of termination of his employment. At that time, D had made no payment to P in respect of salary or otherwise.

10.  P’s last day of employment was 10 May 2017.

11.  D made various payments to P in respect of his employment between 2 December 2016 and 21 September 2017.

12.  On 20 May 2021, P issued the Writ making claims for further entitlements under the Oral Agreement, the Employment Contract and/or Amended Employment Contract.

13.  On 6 September 2021, D filed its Defence.

14.  The Amended Writ and Amended Statement of Claim (“ASOC”) were filed on 6 January 2022. The Amended Defence (“AD”) was filed on 4 February 2022.

15.  On 23 August 2022, P issued this Summons.

THE LEGAL PRINCIPLES

16.  The legal principles on summary judgment are well-settled.

(1)  A plaintiff may obtain expeditious summary judgment to avoid unnecessary delay where there is no valid defence. Where a plaintiff’s application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary. A defendant may show cause to the contrary (1) by preliminary objection e.g. the case is not within O.14, or the statement of claim or affidavit in support is deficient; or (2) on the merits e.g. he has a good defence, or (subject to O.14A) that a difficult point of law is involved, or there is a factual issue which ought to be tried, or there is a real dispute as to the amount involved which requires the taking of an account. HKCP 2023, vol.1, §14/4/1.

(2)  The defendant resisting a summary judgment application must condescend to particulars, and state clearly and precisely the facts in support of the defence: HKCP 2023, vol.1, §14/4/4. Mere assertions do not suffice, but must be supported by evidence that is credible so that one can say there is a fair or reasonable probability of the defence being a real or bona fide one: HKCP 2023, vol.1, §§14/4/9, 14/4/9A.

(3)  In considering whether there are triable issues, the court will not take the alleged defence at face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. The court will also consider the inherent probability of the defence. But what the court should not do is to conduct a mini-trial on complicated factual issues: HKCP 2023, vol.1, §14/4/9A.

(4)  Asserting the need to investigate alleged obscurities or a belief that something will turn up upon investigation would not be proper discharge of the defendant’s burden: HKCP 2023, vol.1, §14/4/3.

THE ISSUES

17.  P’s claims can be categorised as follows:

(1)  The claims which depend upon a finding that the commencement of P’s employment with D was 1 March 2016 rather than 1 April 2016 including: unpaid salary; interest thereon; unpaid ORSO payments;

(2)  Unlawful deduction of bank charges from salary and interest thereon;

(3)  Unlawful withholding of salary and interest thereon;

(4)  Unpaid MPF contributions;

(5)  Payment in lieu of accrued annual leave;

(6)  Unpaid bonus;

(7)  Unpaid expenses;

(8)  Long-term incentive plan (“LTIP”) entitlement.

18.  I note before discussing the individual claims that P’s claims in the ASOC are made pursuant to the alleged Oral Agreement, the Employment Contract and the Amended Employment Contract.

19.  I will first deal with the issue of the true commencement date of P’s employment.

20.  It is undisputed that, in fact, P was working for D from 1 March 2016.

(I)  THE ALLEGED ORAL AGREEMENT

21.  P pleads at paragraph 22 of the ASOC that:

“…Pursuant to a series of discussions between Mr Yordan, Mr Porte and the Plaintiff in or around 28 February 2016 (the "Oral Agreement"), it was agreed that the Plaintiff would be employed as CEO on the following terms:

(a) The Plaintiff would be employed by the Defendant, and the employment would be governed by the laws of Hong Kong;

(b) The Plaintiff would receive a salary of US$500,000 per annum, paid in twelve equal monthly instalments in arrears in the first week of each month;

(c) The Plaintiff would be invited to participate in the L TIP and would be awarded a minimum of 20% of the pool which would be made available to fund the LTIP;

(d) The Plaintiff would be eligible to receive an annual cash bonus of up to US$500,000 per annum, paid, at the discretion of the board with consideration to the established payout ratios of the Defendant's subsidiaries, after the financial year end;

(e) The Defendant would pay US$50,000 per annum in 12 equal monthly contributions to the Plaintiff's ORSO Scheme;

(f) The Plaintiff would receive medical insurance coverage by virtue of the Defendant taking over and assuming responsibility for the Plaintiff's existing medical insurance plan;

(g) There would be six months' notice on either side with some non-compete and other restrictions on the Plaintiff included in the L TIP;

(h) The Plaintiff would receive 30 working days' paid annual leave;

(i) The Plaintiff could perform his duties, working from any of the residences which he maintained around the world; and

(j) The Defendant would reimburse the Plaintiff for any expenses incurred by the Plaintiff for and on behalf of the Defendant;…”

22.  Paragraph 22 of the ASOC is not admitted by the AD paragraph 21, which further asserts that in any event, paragraph 22 cannot give rise to any legal obligation or contract binding on D.

23.  Mr Ng on behalf of D submits that paragraph 22 of the ASOC pleads that P, Mr Yordan and Mr Porte entered into the alleged Oral Agreement and does not plead that the alleged Oral Agreement was made with D.

24.  Ms Lau for P submits that it is implicit from the context that the plea is that Mr Yordan and Mr Porte were acting on behalf of D.

25.  However, I agree with Mr Ng that the plea is deficient to plead D is a party to the Oral Agreement.

26.  This deficiency is by itself sufficient to show cause against P’s application under O.14 with respect to the alleged Oral Agreement. This is irrespective of whether P’s evidence in support of this Summons asserts the Oral Agreement to be with D (see Li Chuen Kwai v Po Lam Construction Development Ltd (unrep.), HCA 2376/2013, 24 September 2014, at para. 19).

27.  In any event, in its evidence, D denies the existence of the Oral Agreement with D, with particular reference to the LTIP issue: Porte paras. 13-25. A disputed oral agreement is unlikely to be suitable for summary determination, save where there is strong corroborating evidence. In light of the existence of the Employment Contract and the Amended Employment Contract, and D’s evidence, I regard the existence of, and the terms of, the alleged Oral Agreement to be a triable issue.

28.  Accordingly, the claims summarised at paragraph 17(1) above are not suitable for summary determination.

(II)  THE WRITTEN EMPLOYMENT CONTRACTS

29.  It is undisputed that P and D signed the Employment Contract then subsequently both signed the Amended Employment Contract at Robertsons’ office. It is common ground that the amendment of the commencement date was to avoid falling foul of D’s statutory obligations to the IRD.

30.  D’s case on evidence is that P and D agreed that D would employ P as a consultant for March 2016, and that D had paid P a consultancy fee in respect of March 2016 (Remeza 1 para. 9(k)(i); Yordan 1 para.53). The assertion of having paid a consultancy fee for March 2016 has not been corroborated. However, on 14 June 2017, D asked P for an invoice in respect of a March 2016 consultancy fee. That is credible evidence of an agreement to treat March 2016 as a period of consultancy.

31.  P’s case (that the agreed commencement date of employment was 1 March 2016 not 1 April 2016) would require me to find that the Amended Employment Contract was a sham and there was an intention to deceive the IRD. P has not pleaded that the Amended Employment Contract is a sham. Indeed, P’s counsel has expressly disavowed claiming it to be a sham, and P relies on the Amended Employment Contract to found some of its claims in the ASOC.

32.  In the circumstances, I am not willing to implicitly find the Amended Employment Contract is a sham. Accordingly, I will not, for present purposes, award summary judgment in respect of any claims founded on the premise that the commencement of P’s employment with D was 1 March 2016.

33.  Whilst I am not satisfied that D paid a consultancy fee in respect of March 2016, I accept that P has not made a claim for the same in the ASOC.

34.  For present purposes, I am unable to accept that P has established that the Employment Contract subsists as a valid contract in the light of the later valid Amended Employment Contract (which duplicated the Employment Contract save for the change in commencement date).

35.  Accordingly, for summary judgment purposes, P has only established an entitlement to make claims under the Amended Employment Contract.

(II)  THE CLAIMS

36.  The Amended Employment Contract provides so far as is material:

“3. Place of Work

The Executive shall perform his duties at such locations within or outside Hong Kong as he shall from time to time determine, including from the Executive's current place of residence in Monaco.

…

6. Remuneration

6.1 The Executive will be paid a basic salary at the rate of US$500,000 per annum (which shall be inclusive of any directors' fees payable to him as a director of any Associated Company). The salary shall be payable in twelve equal monthly instalments in arrears on the last working day of each month to the Executive's nominated bank account.

6.2 The Executive's salary may be reviewed by the Company on an annual basis. Any increase in salary is in the sole discretion of the Company.

6.3 In addition to the salary specified in clause 6.1, the Executive shall be entitled to payment of a bonus based on his performance and the profitability of the Company and the Group for each financial year ended 31^st March. The payment of any such bonus and the amount thereof will be determined by the Board in its absolute discretion. Any bonus awarded shall be paid in full, without deduction or set off and shall not be made conditional upon the Executive continuing to be employed on the date of payment of the bonus or no notice of termination of employment having been given. Bonus will be paid in full no later than 31^st May in each year.

…

9. Annual Leave

9.1 In addition to the general public holidays (excluding Sundays), the Executive shall be entitled to 30 working days' paid annual leave (inclusive of statutory annual leave) for each calendar year, which will be the leave year.

9.2 Annual leave is to be taken at times mutually agreed in advance with the Board.

9.3 Annual leave may not be carried forward from one leave year to the next for a period of more than 90 days unless agreed in writing by the Board. No payment in lieu will be paid for annual leave not taken.

…

11. Expenses

The Company shall reimburse the Executive all reasonable telephone, travel, hotel, entertainment and other expenses incurred by the Executive in or about the performance of his duties under this Agreement provided that the Executive provides reasonable documentary evidence of the expenditure that he has incurred in support of any claim for reimbursement of expenses in accordance with the Company's policies from time to time.”

(1)  Unlawful deduction of bank charges from salary, and interest thereon

37.  There is an unedifying dispute as to whether or not D unlawfully deducted US$54 from D’s salary payments for March to November 2016 and December 2016.

38.  It is clear from the bank remittance slips that D remitted to P the salary amounts less bank charges, rather than the full salary amounts.

39.  D’s final argument (which shifted) is that D should not be responsible for bank charges it incurred by remitting salary payments to P’s bank account in Monaco.

40.  However, it is clear from Clause 6.1 of the Amended Employment Contract that D’s obligation was to pay P’s salary to P’s nominated bank account.

41.  Accordingly, P is entitled to payment of the US$54, plus interest thereon which was submitted by P’s counsel to be US$20.62 (without dispute).

(2)  Wrongful retention of salary for March, April, May 2017

42.  The claim in respect of March 2017 salary falls away with my decision that I cannot on a summary basis find the commencement date of employment to be 1 March 2016. I will now address the April and May 2017 salary.

43.  On 12 April 2017, D filed Form IR56G with the IRD in anticipation of P’s last day of employment, i.e. 10 May 2017.

44.  S.52(7) of the Inland Revenue Ordinance (Cap.112) prohibits an employer who has given such notice from making any payment to the employee for a period of one month from the date on which the notice was filed with IRD, without consent in writing from the IRD.

45.  The prohibition on payment of money to P thus fell away on 12 May 2017. D claimed that the IRD had requested it to continue to withhold payment, however it has produced no evidence of such a request, and P’s solicitors’ inquiries of the IRD elicited a response that no such request was made.

46.  Pursuant to Clause 6.1 of the Amended Employment Contract, monthly salary was payable on the last working day of the month.

47.  S.25 of the Employment Ordinance (Cap 57) (“the EO”) requires any sum due to a terminated employee to be paid within 7 days of termination.

48.  Accordingly, I agree with P that:

(1)  The April 2017 salary became due on 12 May 2017 (in light of the IRD notice);

(2)  The May 2017 salary became due on 17 May 2017 (in light of s.25(1) of the EO).

49.  D paid the April and May 2017 salary on 21 June 2017.

50.  P is entitled to:

(1)  interest on the April 2017 salary from 12 May 2017 to 21 June 2017: US$493.15; and

(2)  interest on the May 2017 salary from 17 May 2017 to 21 June 2017: US$103.11.

(3)  Unpaid MPF contributions

51.  By paragraph 37 of the ASOC, P claims that D failed to enrol P into a MPF scheme pursuant to ss.7-7A of the Mandatory Provident Funds Schemes Ordinance (Cap. 485) (“the MPFSO”), and that HK$21,000 ought to have been paid into a MPF scheme for the benefit of P.

52.  However, I am not persuaded that P has any private law cause of action against D for non-payment of MPF contributions. S.18 of the MPFSO provides that unpaid contributions are due to the Mandatory Provident Funds Schemes Authority (as held in Hsin Chong Construction Co Ltd (No.3) [2021] 1 HKLRD 582 at para. 4).

53.  Accordingly, P is unable to establish its claim for summary judgment of unpaid MPF contributions.

(4)  Payment in lieu of accrued annual leave

54.  By Paragraph 38 of the ASOC, P claims (under the Amended Employment Contract) payment in lieu of approximately 20 days of untaken annual leave, in the amount of approximately US$28,000 less an amount of approximately US$14,000 already paid.

55.  As set out above, Clause 9.3 of the Amended Employment Contract provides that “No payment in lieu will be paid for annual leave not taken”.

56.  P argued that Kwan Siu Wa Becky v Cathay Pacific Airways Ltd [2011] 5 HKLRD 1, §§49-53; affirmed by the CFA in Cathay Pacific Airways Ltd v Kwan Siu Wa Becky (2012) 15 HKCFAR 615, §§35-37 established that, for the purposes of deciding the rates of pay for payment in lieu of annual leave, if the contract did not distinguish between statutory leave and the excess period of leave granted by contract, then it was to be assumed that the rates of pay would be the same for both. I do not see how that assists me. I am not concerned with the appropriate rate of pay, but with the entitlement to pay in lieu in any event. As Mr Ng submits, the Cathay decision is founded on the proper construction of the employment contract, and does not suggest that a contractual provision should be disallowed by virtue of some other policy or rule.

57.  P did not demonstrate any reason why Clause 9.3 in respect of payment in lieu is not enforceable.

58.  In the circumstances, P is unable to establish its claim for summary judgment for payment in lieu of annual leave.

(5)  Unpaid bonus

59.  Clause 6.3 of the Amended Employment Contract provides that the Executive shall be entitled to payment of a bonus based on his performance and the profitability of the Company and the Group for each financial year ended 31^st March; and whether or not a bonus will be paid and in what amount will be determined by the Board in its absolute discretion.

60.  It is common ground that D decided not to pay P any bonus.

61.  D’s evidence asserts that D was unhappy with P’s performance. P responds that there is no contemporaneous documentation evidencing P’s failure to discharge his duties satisfactorily.

62.  It is common ground that, for P to succeed, I would have to find that D had exercised its discretion irrationally or perversely.

63.  Clearly, I am unable to make such a finding on a summary judgment application where the evidence of P and D conflicts as to P’s performance.

(6)  Expenses

64.  By paragraph 41 of the ASOC, P claims the reimbursement of expenses incurred on behalf of D, in particular HK$306,513.46 in respect of unpaid business expenses including the cost of flight tickets, hotel accommodation, food and beverages; and HK$126,437 and GBP432 in respect of unpaid professional expenses including solicitor and notary fees, paid by P because D did not yet have a bank account. The amount claimed by P takes account of a payment of US$127,578 made by D on 3 August 2017 in respect of unpaid business expenses.

65.  P’s claim at paragraph 41 of the ASOC is not admitted by paragraph 47 of the AD. Paragraph 51 of the AD avers that D’s solicitors informed P’s solicitors by letters dated 3 and 15 August 2017 that P had failed to provide reasonable documentary evidence of the expenditure to substantiate his claim; and that D agreed to pay P US$127,578 in full settlement of the expenses substantiated by him and P received the payment.

66.  Clause 11 of the Amended Employment Agreement provides that:

“[D] shall reimburse [P] all reasonable telephone, travel, hotel, entertainment and other expenses incurred by [P] in or about the performance of his duties under this Agreement provided that [P] provides reasonable documentary evidence of the expenditure that he has incurred in support of any claim for reimbursement of expenses in accordance with [D’s] policies from time to time.”

67.  P obtained clarification in Further and Better Particulars dated 1 November 2021 that “[D’s] policy in relation to [P’s] claim for reimbursement of expenses was set out in Clause 11 of the Employment Agreement or the Amended Employment Agreement. There is no separate company’s policy prevailing at the material time in relation to reimbursement of expenses”.

68.  By way of background to this claim, it is undisputed that in respect of expenses incurred by P on behalf of D prior to March 2016, P had submitted a spreadsheet itemizing the expenses with supporting credit statements (but without underlying receipts). D had raised one query which P had answered, then D promptly approved the expenses on the basis of such information.

69.  It appears (from a letter dated 15 May 2017 from P’s solicitors to D’s solicitors) that P first submitted his claim for reimbursement of a further round of expenses in November 2016, with spreadsheets listing the payments and supporting credit card statements. Under cover of a letter dated 20 April 2017, P’s solicitors provided D’s solicitors with approximately 2 bundles’ worth of credit card statements and underlying receipts. By the letter dated 15 May 2017, P’s solicitors referred to the earlier submission of documents and asserted that they had provided full details of expenses with supporting documents. By letter dated 19 May 2017, D’s solicitors responded to the effect that D would review the expenses claims and supporting documents. P’s solicitors chased the reimbursement claim by letter dated 25 May 2017, asserting that D had requested and been provided with much more documentary support than on the previous claim.

70.  By letter dated 3 August 2017, D’s solicitors stated that:

(1)  D had completed its review;

(2)  P had not provided sufficient justification/documentation for a number of expenses and that a number of documents/claims were duplicates.

(3)  D was prepared to pay for the flight, hotel, transport and miscellaneous expenses claimed;

(4)  As to meals D was of the view that US$200 per head was a reasonable amount to spend for client entertainment so only part of the claim for meals was approved.

71.  So far as I am aware, there was no response from D in respect of the unpaid professional expenses.

72.  Remeza 1 at paras. 103-112 makes various assertions in relation to expenses but none of them in my view demonstrate any good reason why P should not be reimbursed.

(1)  He states that the new management team appointed at D after P’s termination had queried why there was no proper expense policy – that is no answer to D’s liability under Clause 11.

(2)  He states D was entitled to impose an expense policy under Clause 11 – that is true, but where no policy is put in place and communicated to P prior to him incurring expenses on behalf of D, that is no defence.

(3)  He states the detail provided by P as to the expenses is a tacit acknowledgment that this is not a matter for summary judgment – that is absurd; there can be no legitimate complaint that P has excessively evidenced the expenses.

(4)  He states P made no attempt to claim the professional expenses for 4 years before issuing the Writ – that is no defence as P is within the limitation period to make the claim.

73.  Mr Ng attempted to persuade me that where D had investigated the claims in 2017 and paid in part, then the rest of the claims should be investigated at trial with Scott schedules. In my view, it is insufficient to assert a desire to investigate in order to found a triable issue.

74.  Mr Ng was able to point to two invoices which appeared to relate to expenses incurred before 1 April 2016, namely:

(1)  a Pinsent Mason invoice dated 13 April 2016 in respect of work done in February-March 2016, totaling HK$55,037;

(2)  a DotCod receipt dated 21 March 2016 in the amount of HK$996.

75.  Mr Ng was unable to point to any other expense as falling outside Clause 11 of the Amended Employment Contract.

76.  Ms Lau accepted that expenses incurred before Clause 11 became operative could not be claimed on this Summons.

77.  Accordingly, I award summary judgment in respect of the unpaid business and professional expenses less the two identified expenses incurred before 1 April 2016. P is entitled to summary judgment for:

(1)  Business expenses: HK$306,513.46 - $996 = HK$305,517.46;

(2)  Professional expenses: HK$(126,437-55,037) = HK$71,400, + GBP 432.

(7)  LTIP

78.  P claims entitlements in respect of an alleged long-term incentive plan (“LTIP”).

79.  P’s claim is apparently based on:

(1)  the alleged Oral Agreement (pleaded at paragraph 22 of the ASOC, as set out at paragraph 21 above); and

(2)  an alleged LTIP Agreement, pleaded at paragraph 23 of the ASOC:

“The LTIP was intended to be a scheme created for senior employees of the Defendant. The purpose of the scheme was to reward employees for their performance and contribution to the success of the company as measured by the return that JCF received from their investment in the Company. Selected employees would collectively receive up to 25% of the profits derived by JCF from either dividends flowing to CXH or the excess capital received by JCF from selling all of or parts of CXH and the subsidiaries. The final form of the terms of the LTIP agreement was circulated between Tanner de Witt, and Robertsons, on 23 June 2016 (the "LTIP Agreement") with a final, minor, modification agreed on 1 September 2016. “

80.  P pleads the relevant claim as follows in the ASOC:

“42. In breach of the Oral Agreement, the Defendant has failed to allot to the Plaintiff, any shares in CXH which would have vested in the Plaintiff pursuant to the Oral Agreement and the unsigned L TIP Agreement.

Particulars

a. Pursuant to the Oral Agreement, the Plaintiff was entitled to participate in the LTIP from 1 March 2016.

b. Pursuant to the terms of the LTIP Agreement, 50% of the non-voting ordinary shares in CXH awarded to the Plaintiff under the LTIP (defined as the Award Shares in the LTIP Agreement) have vested in the Plaintiff as of the Termination Date.

43. Despite numerous requests made by the Plaintiff and his solicitors, the Defendant has refused to allot shares to the Plaintiff in accordance with the terms of the Oral Agreement and the LTIP Agreement.”

81.  It seems to me that P’s pleaded claim with respect to the LTIP is pursuant to the alleged Oral Agreement only. There is no plea of breach of the alleged LTIP Agreement. As discussed at paragraphs 25-28 above, the existence and terms of the Oral Agreement, or claims thereunder, are not a matter for summary judgment.

82.  In any event, the evidence demonstrates a triable issue as to whether the alleged LTIP Agreement was actually agreed.

(1)  In their affirmations on behalf of D, Remeza and Yordan both state that P was given an unconditional offer relating to the LTIP at a meeting in September 2016 but P rejected the offer because P did not sign the LTIP Agreement and said “I need to check the numbers” (Remeza 1 §§120; Yordan 1 §§60-62).

(2)  P’s evidence in reply is that the context in which he said “I need to check the numbers” is that he, for the first time, saw that the agreed “20% LTIP” was reduced to a specific number of shares, i.e. 1,656,649 so he wanted some time to verify the exact calculation (Mackay 2 §§24-25).

(3)  On the basis of that evidence, and P’s concession that he said those words, it seems to me at least arguable that the LTIP Agreement was not finally agreed.

83.  Accordingly, I am unable to find that P has clearly established an entitlement to any benefits under the alleged LTIP Agreement.

(8)  DECLARATIONS

84.  P claims declarations (1) that D was in breach of ss. 23, 25, and 32 of the EO by virtue of its failure to make timely payment of salary; and (2) that D was in breach of ss7, 7A of the MPFSO for failure to enrol P in an MPF scheme.

85.  I will not make such declarations on the basis that:

(1)  I am not satisfied that D ought to have paid P salary for March 2016, and the deduction of bank charge deduction is de minimis,

(2)  I am not satisfied that P has locus standi to seek relief in respect of non-payment of MPF.

CONCLUSION

86.  Accordingly, summary judgment will be entered against D as follows: D do pay to P:

(1)  In respect of bank charges deducted from salary: US$54, + US$20.62 interest thereon;

(2)  In respect of interest payable on withheld salary for April and May 2017: US$493.15 + US$103.11;

(3)  In respect of unpaid business and professional expenses: HK$376,917.46 + GBP432.

87.  I do not consider the remainder of P’s claims to be suitable for summary determination. D has leave to defend the remainder of the claims.

88.  The parties are directed to liaise with a view to agreeing directions as to the further conduct of the action; and to report to court in writing within 14 days on such directions as are agreed and/or any further directions required by the court.

89.  Having regard to HKCP 2023, vol.1, §14/7/10, I make a costs order nisi that one third of the costs of and incidental to the Summons be paid by D to P in any event, and two-thirds of the costs of and incidental to the Summons be in the cause, to be taxed if not agreed. In the absence of any order to vary, the order will become absolute after 14 days.