LI QING v. SFUND INTERNATIONAL INVESTMENT FUND MANAGEMENT LTD

HCLA 5/2024

[2024] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 5 OF 2024

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1818 OF 2023)

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BETWEEN

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JUDGMENT

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Introduction

1.  On 8 January 2024, after trial, the Presiding Officer Ms Minnie Wong (the “Presiding Officer”) allowed the claim brought by the claimant (“C”) against the defendant (“D”) for salaries and allowances in the total sum of HK$1,541,953.05 (the “Trial Decision”). On 6 February 2024, the Presiding Officer dismissed D’s application for review (the “Review”, “Review Hearing”, and “Review Decision”). By Form 14 dated 23 February 2024, D sought leave to appeal against those decisions on the intended grounds set out therein. By summons of 17 April 2024, D sought leave to amend those proposed grounds. On 18 April 2004, having heard Mr Timothy Lam, counsel for D, I granted D leave to amend its Form 14. I further granted D leave to appeal on those amended grounds (the “Amended Grounds”).

2.  This is the substantive hearing of D’s appeal. Mr Lam continued to appear for D. Mr Vincent Chiu appeared for C.

Core factual background

3.  C is a Mainland citizen.

4.  D is a Hong Kong company. It is wholly owned indirectly by 廣州產業投資基金管理有限公司 (“廣投基”) (through 廣州匯垠天粵股權投資基金管理有限公司 (“匯垠天粵”) and 廣州科技金融創新投資控股有限公司).

5.  C was a former employee of D, initially via an employment agreement of January 2017 as D’s Chairman, and later as its General Manager. C was also a director of D.

6.  The employment agreement prevailing at the time when the present disputes arose was dated 11 January 2019 (the “Employment Agreement”), as supplemented by a supplemental agreement of September 2020 (the “2020 Supplemental Contract”).

7.  The Employment Agreement relevantly contained the following terms:

(a) Clause 3.1, which was in effect an exclusive employment clause. It prohibited C while his employment with D subsisted from working for any other third parties unless with D’s consent;

(b) Clause 10 governed termination of the employment, in the following terms:

“10.1 終止

本合同可以根據下列方式被終止：

(a) 雙方協商同意；

…

(d) 如在試用期之後：

(i) 由乙方向甲方提前3個月發出書面通知或支付3個月的代通知金方式；或

(ii) 由甲方向乙方提前3個月發出書面通知或支付3個月的代通知金方式。

…

10.3 終止後的要求

…

(b) 本合同終止後，乙方必須在任何甲方涉及的可能或實際的訴訟或其他程序中協助甲方，乙方所有合理費用由甲方承擔，本條款將在本合同終止後持續生效。”

(c) Clause 13.3 governed variation, that:

“只有經雙方或雙方適當授權的代表書面簽署檔，本合同方可作出修改、變更、補充或修訂。”

8.  In March 2022, C tendered a letter (the “Resignation Letter”) which bore the heading “辭職信”. Immediately beneath that heading was D’s name. The Resignation Letter was dated 3 March 2022. C signed as the “辭職人”. D was stated to be his “工作單位”. It was addressed to “黄志丹董事長”. It stated inter alia that:

“本人李青...目前擔任[D]總經理，由於長期分居等原因，特請辭去[D]的所有工作，包括下屬所有公司的任職，懇請批准！”

9.  By a notice signed by C, he also with effect from 2 March 2022 resigned as a director of D.

10.  A notice was subsequently issued by “中共廣州產業投資基金管理有限公司委員會” (the “Acceptance Notice”). It bore the seal of that committee. It was entitled “廣州基金黨委關於[C]同志職務任免的通知”. It read:

“各部門、各子公司：

            經中共廣州產業投資基金管理有限公司2022年9次黨委會研究，並報經市城投集團黨委批覆同意：

            [C]同志任廣州匯垠天粵股權投資基金管理有限公司副總經理，免去其[D]董事、總經理職務。”

11.  On 9 March 2022, D issued a letter to the Immigration Department and stated that:

“[C] (香港身份證號；xxx[1]) 已與我司終止僱傭關係，從2022年3月3日起，我司不再擔任[C]的工作簽證保證人，懇請貴處協助更新[C]的簽證狀態。”

12.  Also on 9 March 2022, D’s board of directors passed a resolution resolving inter alia that:

“本董事會會議審議通過：同意 … 接納[C]辭去本公司董事、總經理及投資管理委員會代理投委會主任職務，自2022年3月2日生效。”

13.  C started a new employment with a third party on 23 March 2022 (the “New Employment”).

14.  More should be stated about the New Employment:

(a) C did not reveal it during the trial. D at that stage was not able to discover it up from its records;

(b) In the course of its preparation for the Review, D made further enquiries with its former employers. One of them uncovered a letter sent to him by C (the “Explanatory Letter”). It was dated 8 July 2022. Therein, C said, inter alia:

“6、 2022年2月23日，在香港疫情最嚴重時回到了香港。經個人再三考慮，於2022年3月3日正式提出了辭職，並把辭職信交給了黃志丹董事長，等待回覆。

7、 2022年3月7日，廣州基金黨委會下發了新的任命書，我與廣州基金沒有任何勞動關係，也沒有事先徵求我的意見。按照相關法規，我有接受或不接受的選擇權，對此我及時匯報給領導，放棄黨委會對我的任命。

8、 按照香港法規要求，在廣州基金國際未告知我正式離職前，工資要正常發給我，但在3月3日後廣州基金國際就停了我的工資，並在3月10日左右，發函給入境事務處，告知我已不是香港公司的員工，實際上解除了我與廣州基金國際的勞動關係。這種做法本身就違反了香港勞動法，也不符合我們上級單位的要求。正確做法是，我寫了辭職信及時上報流程，同意我離職後，辦完相關手續後才告知香港入境事務處。

9、 基於以上原因，導致了我無法繼續在廣州基金工作的想法。由於香港正處於疫情高峰期，限流更加不可能讓我馬上回廣州，為了在香港能正常生活，我去諮詢了入境事務處，回覆我已經具備了重新合法的簽訂新的勞動活動，3月23日，我簽訂了新的勞動合同，並順利在入境事務處備案，開始了新的工作。

10、 從另外一個層面來說，我寫了辭職信，三個月內沒有給我辦理離職手續，我也具備合法的離開的條件，4月下旬，廣州基金一直要我的護照，鑒於個人沒有任何違法違規行為，為配合上級工作上交個人護照，並非個人接受任命。

11、 目前從法律上來說，我已經不再是廣州基金國際的員工，但我會配合個人審計。根據合法合規層面的要求，從6月3日起，我已不再是廣州基金國際員工，已沒有履責的權利，我不會再簽署公司的任何文件，也請還回我的護照，所以也請求組織合法合規的考慮我的訴求。”

(c) During the Review Hearing, C was asked by the Presiding Officer about the New Employment with reference to the Explanatory Letter. C claimed that he could not remember.

15.  C was only paid under the Employment Agreement up to 3 March 2022.

16.  In June 2023, C started LBTC 1818/2023 against D. In gist, he claimed that the Resignation Letter was only a notice he tendered pursuant to Clause 10.1 of the Employment Agreement, and that he had continued to carry out his duties even beyond the 3-month notice period, until the new General Manager reported duty on 15 September 2022.

17.  D denied liability. In its Defence, Counterclaim and Witness Statement, it stated that C unilaterally terminated the Employment Agreement on 3 March 2022 when C issued the Resignation Letter. At §12 thereof, D said that:

“After submitting the [Resignation Letter], [C] failed and/or refused to attend the office of or perform any duty for [D] (save and except signing of various corporate documents to resign his position with [D]). Therefore, [C] had unilateral [sic.] and wrongfully terminated the [Employment Agreement] and the 2020 Supplemental Contract with immediate effect on 3^rd March 2022, in breach of Clause 10.1(d)(i) of [Employment Agreement] and Section 7 of the Employment Ordinance …”

On that basis, D counterclaimed for damages, quantumised as 3 months’ payment in lieu.

The trial and the Review

18.  The core issues before the Presiding Officer essentially were how and as a result when the employment relationship between C and D was terminated.

19.  At §14 of her Reasons for Decision dated 22 March 2024, the Presiding Officer identified the issues as follows:

“雙方爭議議題是：

(1) 申索人在2022年3月3日遞交辭職信之後有沒有為被告公司工作；

(2) 如果有，雙方的僱傭關係直到何時完結。”

20.  Having considered the evidence, the Presiding Officer found and concluded at §§37-39 that:

“如果有，雙方的僱傭關係直到何時完結

37. 縱觀所有證供及證據，本席信納申索人的案情，即他在2022年3月3日遞交辭職信後一直為被告公司工作，直到至少被告新的總經理上任的時間，而被告公司承認新的總經理在2022年9月才上任。按照雙方僱傭合約就通知期的規定……，申索人的最後一天工作日本應為2022年6月3日，然而本席認為由於被告公司在6月3日後繼續要求申索人工作，而申索人亦應被告公司要求繼續工作，雙方的行為改變了僱傭合約中第10.1(d)條有關通知期的條款，延長了通知期，直到至少2022年9月被告公司新的總經理上任為止。所以本席裁定雙方的僱傭關係至少直到2022年8月31日才結束。

38. 作出上述延長僱傭合約中規定的通知期的裁定時，本席已考慮僱傭合約第13.3條有關修改合同的條款，及英國最高法院在Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24 一案中，就修改含有俗稱「禁止口頭修改」的條款 (No Oral Modification clause) 之合約的判決。該案法官Sumption 勳爵在其判決中認爲「如有合約條文要求有關變更須遵循指明手續，則法律應該及確實地賦予該條文效力」。本席認為僱傭合約第13.3條雖然訂明只有經雙方或雙方授權代表書面簽署文件，方可修改僱傭合約，但是該條款沒有排除雙方以他們的行為去改變合約條款的情況，本席認為該條款沒有令雙方以行為去改變通知期的條款變成無效。

39. 如果本席上述有關改變通知期條款的裁定錯誤，及為完整起見，本席在此書面判詞作出以下補充：在考慮雙方行為在法律上的含意及效果時，本席亦有考慮申索人繼續應被告公司要求工作有可能代表他撤回在3月3日遞交的辭職通知，直至被告公司在2022年9月委任新的總經理而減少甚至其後停止要求申索人工作，而令雙方以行為同意僱傭關係在該時間點才終止。這看法會得出與上述有關改變通知期條款相同的結論，即雙方的僱傭關係至少直到2022年8月31日才終結。”

21.  For those reasons, the Presiding Officer awarded C salaries and allowances in the total amount which I have stated above.

22.  As I have mentioned above, D’s application for Review was also subsequently dismissed. In respect of the New Employment, the Presiding Officer said as follows:

“16. 本席認為，即使申索人真的受僱於另一間公司，香港法律沒有禁止一個人可以有兩個僱主的情況。因此，這份新證據最多只能顯示申索人在2022年3月23日開始有另一份工作（但是這方面並沒有實質證據證明）。雖然雙方僱傭合同…第3.1條規定，申索人同意在聘用期內，未事先獲得被告公司的書面同意，申索人不會為任何其他人士或機構從事任何工作，如有任何變更，申索人須在於指定時限通知被告公司，被告公司最多只能指出申索人違反了該合約條款，或以此而追討公司的損失，但這不能推翻申索人受僱於被告公司的事實。”

The Grounds of Appeal

23.  The Grounds of Appeal in gist, and as summarised by Mr Lam, are as follows:

“(1) Ground 1: The Presiding Officer erred in law in finding that the Employment Relationship was terminated on 31 August 2022. A tribunal correctly directing itself on the law could not reasonably have reached such conclusion:-

(a) Sub-ground 1(a): The Presiding Officer erred in holding that the parties had by conduct ‘varied’ the termination notice period provision (i.e. Cl.10.1(d)) of the [Employment Agreement] and have ‘lengthened’/extended the subsistence of the Employment Relationship until ‘at least 31 August 2022’. In so holding, the Presiding Officer fundamentally overlooked Cl.13.3 of the [Employment Agreement] which provides that no variation could be effective unless made in writing and signed by the parties;

(b) Sub-ground 1(b): In determining when the Employment Relationship was terminated, the Presiding Officer erroneously applied the wrong test of ‘whether the Claimant did any work for the Defendant after 3 March 2022’ or erred in focusing narrowly on this issue;

(c) Sub-ground 1(c): The Presiding Officer’s finding was made without regard and/or proper/sufficient regard to various relevant principles and/or matters and/or factors; and

(d) Sub-ground 1(d): The Presiding Officer’s finding was made by reference to irrelevant factors.

(2) Ground 2: The Presiding Officer erred in law by failing to discharge its statutory duty to investigate:

(a) whether the Employment Relationship was terminated by mutual agreement pursuant to Cl.10.1(a) of the [Employment Agreement].

(b) the fact of C having signed an employment contract with another employer with 23 March 2022 and such lack of investigation gave rise to injustice in that a fair and proper determination of the claim could not be attained.

(3) Ground 3: A tribunal correctly directing itself on the law and on the facts and considering only the relevant factors would come to the conclusion that:

(a) The Employment Relationship was terminated with effect on 3 March 2022 by the mutual agreement of the parties formed on 7 March 2022 pursuant to Cl.10.1(a) of the [Employment Agreement] when D’s parent company issued the Notice; and

(b) Alternatively, the Employment Relationship was terminated on 3 June 2022 following the expiry of the 3-month notice period.”

Parties’ stances on appeal

24.  Mr Lam submits that:

(a) The appeal should be allowed; and

(b) Upon the appeal being allowed:

(i) The Trial Decision should be overturned and C’s claim against D dismissed outright; or

(ii) Alternatively, this Court is invited to order that the matter be remitted back to the Labour Tribunal to be heard before another Presiding Officer.

25.  Mr Chiu submits, at §§3 and 4 of his written submission, inter alia, that (emphasis being original):

“3. C’s position on the appeal. C does not make submissions to oppose the appeal, save that in the event that the Court accedes to the appeal, C submits that the proper order for this Honourable Court is to remit C’s claim to the LT for re-trial before another Presiding Officer, instead of dismissing C’s claim outright.

4. In light of C’s position, these submissions will focus on the following matters (which would show that a re-trial is the appropriate outcome if the appeal is acceded to) …”

26.  In effect, Mr Chiu does not seek to resist the appeal or to uphold the Trial Decision. The submissions he has made relate solely to the issue as to whether there should be a retrial.

Ground 1

27.  For the following reasons, I am of the view that Ground 1 has been made out:

(a) In my view, in deciding when and how the employment relationship between C and D had been terminated, the deciding consideration is Clause 10 of the Employment Agreement, and whether the employment relationship had been terminated according to any of the agreed mechanisms;

(b) The Presiding Officer adopted a wrong test, namely “申索人在2022年3月3日遞交辭職信之後有沒有為被告公司工作”;

(c) As observed by Queeny Au-Yeung J in 洪輝 對 明利文具製品廠有限公司 [2024] HKCFI 541 at §24, “離職的員工可以有很多原因跟接任的董事及前員工進行溝通，例如工作上的交接 ”;

(d) On top, the Presiding Officer has apparently placed a burden upon D to disprove any continuous discharge of duties by C, as is apparent from the comment she made when delivering her oral reasons, that “被告不能證明呢段期間申索人冇為被告公司工作 ” [2];

(e) The adoption of the above test and approach has led the Presiding Officer into reaching a conclusion without proper regard to the contractual mechanisms of termination, who then only sought to re-visit those mechanisms after a conclusion had been reached, then put forward the notion of variation by conduct, but in the process overlooked the effects and operation of Clause 13.3.

Ground 2

28.  Section 20(3) of the Labour Tribunal Ordinance (Cap. 25) provides that:

“The presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party.”

29.  The nature of that duty to investigate has been discussed in a number of cases, which include Chan Suk Bing Angie v Harbour Phoenix Ltd [1992] 2 HKC 459, per Jerome Chan J at 462A-D and 465 C-H, and Leung Wan Kee Shipyard Ltd v Lik Shau Foo [1995] 3 HKC 229, per Waung J at 233I-234A. The heavy work-load of the Labour Tribunal is readily acknowledged. But this duty to investigate matters considered relevant to the claim is a statutory one, and arises irrespective of whether any of those matters “has been raised by a party”. It is an important duty that flows from the informal nature of the hearing, the prohibition of legal representation, and the inquisitorial nature of the proceedings.

30.  In considering the termination of the employment relationship between the parties, the Presiding Officer concentrated upon Clause 10.1(d). She put forward the notion of variation by conduct. She further put forward the alternative notion of withdrawal of the Resignation Letter by C. Perhaps affected by the way D ran its case during the trial (unilateral termination by C, with a counterclaim against C for 3 months’ payment in lieu), the Presiding Officer had not investigated the scenario of termination by mutual agreement. She did not do so even during the Review when the Explanatory Letter was disclosed. Whilst the way D ran its case should be noted, that does not relieve the Presiding Officer from investigating the question of termination by mutual agreement, which was clearly relevant to parties’ cases.

31.  For the above reasons, I am of the view that Ground 2 has also been made out.

Ground 3

32.  Given the way D ran its case at trial, and given the way the case was investigated and considered, I am not persuaded that Ground 3 has been made out. Whether parties’ employment relationship had been terminated by mutual agreement pursuant to clause 10.1(a) is facts-sensitive. I heed the observations of Queeny Au-Yeung J in 洪輝 at §12, applying 馮浩嵐 訴 威達製品有限公司及另一人 (HCLA 6-7/2011, 14 October 2011), that:

“Whilst an appellate Court cannot disturb a reasonable conclusion of the fact-finding tribunal merely because its own preference is for a contrary conclusion, the appellate Court would be duty-bound to substitute the contrary conclusion for the one reached by the tribunal if the appellate Court regards the contrary conclusion as the true and only reasonable one. A decision may be quashed if it was based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. If the decision cannot be supported, the appellate Court will infer that the tribunal misunderstood or overlooked the relevant evidence or misdirected itself in law, and it is not necessary to identify a specific error of law”

On the materials before me, I am not satisfied that I can at this stage substitute a finding of termination by mutual agreement on 3 March 2022. I cannot say that that conclusion is the true and only reasonable one. Nor is it in my view fair to C for this Court at this stage to do so.

Conclusion

33.  For the reasons set out above, I allow the appeal.

Whether to order a retrial

34.  Also for the reasons set out above, and in particular those dismissing Ground 3, I have formed the view that the case should be remitted to the Labour Tribunal for retrial before another Presiding Officer. During the hearing, Mr Lam informed this Court that he would not resist any order remitting the matter back for a retrial. I have also considered Chok Kin Ming v Equal Opportunities Commission [2017] 2 HKLRD 521. The observations of G Lam J (as he then was) at §70 also support this course be taken.

Orders and Directions

35.  I make the following Orders and Directions:

(a) The appeal be allowed;

(b) The award and the order of the Presiding Officer dated 8 January 2024 be set aside;

(c) The claim of the Claimant be remitted to the Labour Tribunal for a retrial before another Presiding Officer.

Costs

36.  Mr Lam for D seeks costs of and incidental to the application for leave to appeal and the substantive appeal, to be summarily assessed.

37.  Mr Lam relies on a number of decisions. They include Yu Tai Keung Tim & Anor v Billion Town Corporate Consultants Ltd [2022] 6 HKC 239, Lai Wo Heung v Cheung Kong Fur Fty Co Ltd 1 HKLRD 959, Pang Hong v Pro-Centric Group Ltd (HCLA 85/2005, 20 September 2006), and Pak Wang Kwan v Associated Tourist Coach Ltd (HCLA 7/2001, 30 November 2001). They are relied upon as examples showing that costs of an appeal may still follow the event despite any remitter. Yu Tai Keung is further relied upon for the proposition that the appeal court may order costs to follow the event even though the respondents have not contributed in any way to the mistake of the adjudicator (§77, per Queeny Au-Yeung J).

38.  Mr Lam distinguishes Ali Shoukat v Hang Seng Bank Ltd (HCLA 112/2004, 20 June 2005). In that case, Hang Seng Bank lost before the Labour Tribunal, and was on appeal “wholly successful and was utterly without fault” (§21). Mr Lam points out that that case concerned a claim by a security guard against a bank, where the amount in dispute was small, so that the Court’s exercise of discretion in making no order as to costs may be understood in that context. The sentiments expressed by To J at §21 should be noted, that justice may be tempered with mercy. I note also the learned Judge’s observations at §§22 and 23, that:

“22. … it is impossible to set out the circumstances when it would be just to exercise the discretion of making no order as to costs as each case depends on facts of its own. I think the following considerations should usually be taken into account in the exercise of this discretion. The primary consideration is whether the unsuccessful party has been guilty of unmeritorious conduct in the litigation both at first instance and on appeal. Of secondary importance are whether the unsuccessful party is legally represented in the appeal, whether he is the appellant or the respondent and balance of hardship the order of costs may have to the parties.

23. If the unsuccessful party to an appeal has not put forward a claim or a defence in bad faith and has not misbehaved himself in the conduct of the litigation, the appellate court should be slow in ordering costs of the appeal against him. Bad faith in this context means putting forward a false, frivolous or vexatious claim or defence and giving false evidence which is disbelieved. On the other hand, if he misled the Presiding Officer and obtained a judgment in his favour which led to the appeal, there is no reason why he should not bear the consequence of costs, even if such costs far exceeds his claim or the value of the claim against him. He only has himself to blame for his misfortune. Generally the discretion to make no order as to costs should lie in favour of the unsuccessful party who cannot afford legal representation. This is because if a party is legally represented on appeal, he knows of the consequence of costs and he no longer litigates with the expectation of low-costs adjudication. Likewise, the discretion should also be exercised in favour of the unrepresented respondent as he is a passive party to an appeal, provided that he has not been guilty of any unmeritorious conduct in the litigation.”

39.  On the facts of the case, Mr Lam submits that C during the trial concealed from the Presiding Officer his New Employment on 23 March 2022. Even during the Review Hearing, he was evasive when being asked about the New Employment, by claiming that he could not recall. Mr Lam submits that such conduct should be reproached. He submits that there is no reason why costs of the appeal should not follow the events.

40.  Mr Chiu originally submits that the costs of the appeal should either be in the cause of the retrial, or that there be no order as to costs. He ultimately submits that the latter should be the appropriate order. He relies on Chok Kin Ming wherein G Lam J, despite having allowed the defendant’s appeal and ordered a remitter, ordered that there be no order as to costs. It is noted that in making that costs order, the learned Judge had regard to the considerations taken into account in Ali Shoukat. Mr Lam further submits that D’s conduct, and in particular the way it ran its case, had also contributed to the outcome. He also submits that what C did was simply to lay the facts before the Presiding Officer and sought a ruling from her as she deemed fair.

41.  I have also considered the correspondence between C and D in August 2024. C first proposed (on 7 August 2024) that the appeal be allowed, that there be a remitter, with no order as to costs. D did not accept the proposal, and counter-offered (on 27 August 2024) that the appeal be allowed with a remitter, but with costs to D. The next day, C rejected that counter-offer, and stated that “Your offer is simply unrealistic and unreasonable, and it has been rejected by our client outright (also, on the strength of Counsel too). So please focus on the appeal and send us the Hearing Bundles as early as practicable”. There was no indication that C, subject to the issue of remitter, did not intend to oppose the appeal. That was only made clear when Mr Chiu lodged his written submissions in opposition on 19 September 2024.

42.  I have considered all the factors urged upon me. I am of the view, for the following reasons, that C shall bear the costs of and occasioned by the appeal (including the application for leave):

(a) This is not like a case of, for example, a security guard taking on a bank. C was at one stage D’s Chairman. Even at the time immediately before resignation, he was the General Manager and a director. His salaries had been substantial;

(b) There is no basis to temper justice with mercy;

(c) As can be seen from the Explanatory Letter, he himself formed a view that he had “回覆我已經具備了重新合法的簽訂新的勞動活動，3月23日，我簽訂了新的勞動合同，並順利在入境事務處備案，開始了新的工作”;

(d) Neither the Explanatory Letter nor the New Employment was before the Presiding Officer during the trial;

(e) Even on Review, C was not forthcoming in respect of the details of the New Employment. This bore upon the Presiding Officer’s consideration, as is apparent from her observations at §16 of the Review Decision, that “這份新證據最多只能顯示申索人在2022年3月23日開始有另一份工作(但是這方面並沒有實質證據證明 ”;

(f) During the trial, he did not simply lay the facts before the Tribunal. He ran a positive case that he was entitled to salaries and allowance from 4 March 2022 till the appointment of his replacement;

(g) C did propose in August 2024 that the appeal be allowed with a remitter. But upon D seeking costs, C curtailed the negotiation, and asked D to “focus on the appeal”. Had he at that stage made clear his intention of in any event, subject to the question of remitter, not opposing the appeal, there might be a basis of apportioning the costs. But he did not;

(h) In the end, D is successful in the appeal. On the facts, even assuming everything to be equal, there is nothing which warrants this court depriving D of its costs. This is enough to dispose of the costs issue. If anything, there is litigation conduct on C’s part (as outline above), which can be taken into account in tilting the balance against C.

43.  For the above reasons, I order that C shall bear the costs of and occasioned by the appeal (including the application for leave), to be summarily assessed.

44.  For the purpose of summary assessment, I direct that D shall lodge and serve its statement of costs within 14 days from the date hereof, C to lodge and serve its statement of objections within 14 days of receipt, and P to lodge and serve it reply within 7 days afterwards. The summary assessment will be conducted on the papers.