HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE

CAMP 60/2018

[2018] HKCA 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2018

(ON AN INTENDED APPEAL FROM HCLA 9/2017)

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REASONS FOR JUDGMENT

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

1.  Despite the efforts of Mr Shum, we are not minded to grant leave to the claimant to appeal against the judgment of Wilson Chan J of 30 April 2018.

2.  First, none of the grounds canvassed by Mr Shum on behalf of the claimant has been argued at the court below. For Labour Tribunal appeal, leave has to be obtained from the Court of First Instance before an appeal can be brought. The Court of First Instance did not grant leave in respect of these new grounds (as they were not canvassed in the Tribunal nor before the Court of First Instance).

3.  Second, they are not pure points of law. The crucial findings by the Tribunal are at [26] to [28] and [34] to [38]. In those paragraphs, the Tribunal identified the conduct of the claimant which had the effect of damaging the mutual trust and confidence. Hence, it was not merely a matter of dislike or subjective opinions on the part of the management. The Tribunal found the true reason for dismissal was that such conduct resulted in loss of mutual trust and confidence. The history clearly shows that the problem is not trifling. The reason is clearly relevant to the consideration of the employer in assessing if the employment of the claimant should be terminated. As such, applying the approach laid down in Thomas Vincent v South China Morning Post Publishers Ltd (2005) 8 HKCFAR 605 at [28] to [30], the Tribunal was entitled to find this to be a valid reason.

4.  We are also of the view that the intended appeal has no merit.

5.  As held by the Court of Final Appeal in Thomas Vincent v South China Morning Post Publishers Ltd, supra, at [25], the statutory regime in Hong Kong is materially different from the unfair dismissal regime in the United Kingdom, hence English cases under the latter regime should not be applied without due regard to such difference in Hong Kong. At [25], Bokhary PJ said:

“ The issue under s32A(2) and 32K is whether the employer’s intention in dismissing the employee was to extinguish or reduce any right, benefit or protection conferred or to be conferred on the employee under the Ordinance.”

6.  In the present case, the claimant cannot pinpoint any right, benefit or protection conferred under the Employment Ordinance which had been extinguished or reduced by reason of the dismissal. Mr Shum’s attempt to relate that to s72B(1)(a) of the Employment Ordinance is without merit in light of the findings of fact by the Tribunal that the claimant was dismissed not because of the giving of evidence or the lodging of claims by her.

7.  As held by Wilson Chan J in the court below, the claimant had attempted to challenge the findings of fact in HCLA 9/2017. The attempt failed and we agreed with Wilson Chan J that the Presiding Officer was entitled to reach the findings as he did in the Reasons for Decision of 23 May 2017.

8.  We also do not find the attempt by Mr Shum to expand the scope of s72B(1)(a) reasonably arguable. In any event, it would be a fact-and-evidence sensitive issue and we are not persuaded that this Court should allow it to be run for the first time in an appeal which is confined to question of law of general public importance.

9.  Nor do we find any merit in Mr Shum’s reliance on Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 at [56]. In that case, there was a finding that the protected conduct (participation in trade union activities) was a material and operative cause of dismissal. In the present case, the Presiding Officer made specific finding that the termination of the claimant’s employment was not because of any protected act under s72B, see [26] and [43] of his Decision. We do not agree with Mr Shum’s reading to the contrary by reference to [35] of that Decision.

10.  For these reasons, the Amended summons of 21 June 2018 as well as the summons of 10 May 2018 are dismissed.