CHEUNG NGA WUN v. MAK CHUN HING T/A JEFFREY MAK LAW FIRM

HCLA 24/2025

[2025] HKCFI 5483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 24 OF 2025

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3267 OF 2024)

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D E C I S I O N

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I.  INTRODUCTION

1.  By Form 14 filed on 13 August 2025 (the “Form 14”), the Defendant applies for leave to appeal against Presiding Officer Ms Susan Wong’s (the “Presiding Officer”) dismissal of the Defendant’s review application (the “Review Application”) in respect of a Consent Order entered on 27 September 2024 (the “Consent Order”) upon the parties’ consent in settlement of all claim in the proceedings. During the hearing before me, departing from the Form 14, the Defendant also says that he would apply for leave to appeal against the Consent Order itself.

II.  BACKGROUND

2.  The Defendant is a solicitors’ firm. The Claimant is a former employee of the Defendant. The Claimant claimed for payment in lieu upon termination of the employment and loss arising from arbitrary deduction of the Claimant’s basic salary without valid reasons.

3.  On 27 September 2025, upon the parties’ consent by way of a written settlement agreement dated 27 September 2025, the Presiding Officer made the following order:-

“1…

2. 經雙方同意，被告人須繳付款額$10,000.00予申索人，以最終及圓滿解決其所有申索…

3. 無訟費命令。”

4.  On 31 March 2025, the Presiding Officer received a statement dated 27 March 2025 from the Defendant, stating that after the payment made under the Consent Order, he found out that the Claimant had made groundless negative comments against his firm on the Internet in or around June 2024, and asked the Presiding Officer to revoke the Consent Order. The Presiding Officer refused by a letter dated 2 April 2025.

5.  On 14 April 2025, the Defendant wrote to the Presiding Officer again, seeking a hearing for him to explain why the Consent Order should be revoked. The application was refused.

6.  On 22 April 2025, the Defendant filed a Form 13 (the “Form 13”) formally to apply for review of the Consent Order, stating:-

“The Claimant has published improper and disparaging comments against the Defendant and his practice (including the staff and alumni of the practice) in breach of her Employment Agreement. Such misconduct of the Claimant has not been brought to the attention of the Defendant, nor was the Defendant aware of such misconduct at the time of the consent order. As stated in the Defendant’s application letter dated 9 April 2025… the consent underlying the consent order of 27 September 2024 had been vitiated and accordingly the consent order should be void, invalidated or otherwise ineffective. The Tribunal refused the Defendant’s application by its letter dated 15 April 2025 without a hearing from the parties which hearing should be a necessary or material part of the due process for the Tribunal to properly handle the application. The Defendant humbly requests a hearing be appointed for the parties to address the Tribunal on the Defendant’s application.

…

*** New facts not known to me on 27 September 2024 and thus this belated application”

7.  Hearing was fixed and took place before the Presiding Officer on 29 July 2025. The Presiding Officer dismissed the Review Application on the following grounds:-

(1)  The Review Application was out of time. The time limit was, pursuant to section 31 of the Labour Tribunal Ordinance (Cap. 25) (the “LTO”), 7 days only.

(2)  The complaint made by the Defendant in the letters and in the Form 13 did not assist the Review Application.

III.  INTENDED GROUND OF APPEAL

8.  The ground the Defendant intends to appeal on set out in the Form 14 is framed by the Defendant as follows:-

“The Tribunal erroneously rejected the review application by the Defendant on 30 July 2025. Item 2 of the Tribunal’s order by consent dated 27 September 2024 is improper/insecure because the Claimant secretly wrote an email raising new information/facts on 26 September 2024 to the Tribunal only without copying the Defendant, and spread smearing information on the Internet, violating the principle of due process and vitiating the settlement agreement of 27 September 2024 signed by the Defendant (kept in the dark). Justice must be seen to properly done in public, lest it becomes injustice.”

IV.  TIME LIMIT FOR REVIEW

9.  The time limit for a review application is prescribed by section 31 of the LTO to be 7 days. There is no provision for the Tribunal or the Court of First Instance to extend the time. There is no such provision as in section 32 concerning appeal for time extension (“or within such extended time as may be allowed by the Registrar of the High Court on good cause” in section 32(1) of the LTO). In my view, the review procedure was an economical procedure for the parties and the Tribunal to correct any award or order on proper grounds without incurring substantial costs and time. The procedure is intended to be quick. The aggrieved party may still appeal the order without review, and so there is nothing unfair to prescribe the time limit without any power to extend the time for review. Considering the text and the context, I find that there is no power conferred to extend the 7 days limit for a review application. The Presiding Officer was correct in dismissing the Review Application solely on this ground. There is no arguable question of law in this regard.

V.  INTENDED APPEAL AGAINST THE CONSENT ORDER

10.  As mentioned above, during the hearing before me, the Defendant departed from the Form 14 and applies leave to appeal against the Consent Order itself. The time limit for applying for leave to appeal is 7 days or “or within such extended time as may be allowed by the Registrar of the High Court on good cause” under section 32(1) of the LTO. The power to extend time is conferred on the Registrar of the High Court, but not a High Court Judge. Therefore, I do not have any power to extend time. On this alone, I shall dismiss the Defendant’s application for leave to appeal against the Consent Order.

11.  In any event, if I had a power to extend time, I would have to consider the length of the delay, the reason for the delay and the merits.

12.  The reason given by the Defendant for the delay in applying for leave to appeal against the Consent Order does not constitute any good reason. During the hearing, he explained, without affirmation, that he was in the process of confirming whether the Claimant was really the one who posted the adverse comments on the Internet, and it was only during the 30 July 2025 hearing before the Presiding Officer that he could confirm or he could be surer from the Claimant’s submissions during that hearing. The Defendant does not explain how the Claimant’s submissions could help in the process of confirmation. In any event, the Defendant told me that he could confirm the same upon the hearing on 30 July 2025. In other words, taking the matter to the highest for the Defendant, it would be a delay of more than two months, from 30 July 2025 until today when he applies during the hearing before me for leave to appeal against the Consent Order. In the light that the Defendant is a solicitor and therefore has no excuse that he is not familiar with the law and procedure, I would dismiss his application for leave against the Consent Order on the ground of lack of good reason for delay alone.

13.  In any event, there are no merits in the Defendant’s case to set aside the Consent Order:-

(1)  The Defendant’s case is that had he known about the Claimant’s adverse comments on the Internet, he would not have entered into the settlement agreement underlying the Consent Order.

(2)  He referred to HMC v CWY, FCMC 3129/2021 before the Presiding Officer. That case, however, was an ancillary relief case in matrimonial context. As a matter of law, it is only in a family settlement context that a duty to disclose all the material circumstances may arise: see Leung Ping Chiu Roy, appointed by Order dated 12 May 2020 to represent the Estate of Yang Foo-Oi, since deceased v Wai Wai Chen & Anor [2021] HKCA 941 at §§181-182 per Kwan VP, Cheung and Chu JJA. The present case certainly is not such a case.

(3)  During the hearing before me, the Defendant submits that the Plaintiff as a lawyer should act fairly and therefore should have informed him of her adverse comments made on the Internet. I do not see any basis for the Defendant’s such submissions which would effectively create an exception for lawyers to the general legal principle that a contractual party has no positive duty to disclose.

(4)  During the hearing before me, the Defendant also submits that there was a mistake that would vitiate the Consent Order or the underlying settlement agreement, namely, there was a mistake whereby he did not know that there was such adverse comments made by the Claimant. Such submissions are another way of saying that the Claimant had a positive duty to disclose, which I have rejected.

(5)  Further and in any event, the negative comments made by the Claimant would not be relevant in relation to the Claimant’s claim or the Defendant’s defence. There might be relevance if, for example, the Claimant failed to disclose to the Defendant that she actually did not attend office and did not work at all such that she would not be entitled to the payment in lieu, or that she actually had received the payment in lieu but still claimed on the basis that she did not. But this is not the case here.

(6)  In any event, the so-called negative comments were not adduced in any proper way that can be admitted as evidence before me.

(7)  In respect of the “secret” email sent by the Claimant to the Presiding Officer, the “secret” email was, in gist, complaining that the Defendant disclosed the Claimant’s private information and the Defendant was malicious and exerting pressure on her. The complaint clearly was irrelevant to the Claimant’s claim and the Defendant’s defence to the claim, and if the email were sent unilaterally to the Presiding Officer, this would be highly inappropriate. However, it is clear that in making the Consent Order, the Presiding Officer was not at any rate affected by it (see §21 of the Reasons for Decision of the Presiding Officer). Further, insofar as there is any suggestion that the Claimant had a duty to disclose this secret email to the Defendant prior to the Consent Order, I repeat my analysis in §§(1) – (4) above, and reject such suggestion.

(8)  In any event, given my analysis in §§(1) – (4) above, I cannot see how this “secret” email would assist the Defendant in its intended appeal.

14.  There is no prospect of success in the intended appeal against the Consent Order. So, there is no point in extending time for the application for leave to appeal against the Consent Order, even if there were good reason for the delay and even if I had the power to extend time.

VI.  CONCLUSION

15.  In the circumstances, I see no question of law involved, see no error in the Presiding Officer’s dismissal of the Review Application and see no merits in the Defendant’s intended appeal against the dismissal or the Consent Order itself. I therefore dismiss the Defendant’s application for leave to appeal against the Presiding Officer’s dismissal of the Review Application on 30 July 2025 and the Defendant’s application for leave to appeal against the Consent Order. I make no order as to costs.