NGAN YU CHIU v. NEW WORLD FIRST BUS SERVICES LTD

DCCJ 824/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 824 OF 2009

____________

BETWEEN

____________

_______________

D E C I S I O N

_______________

Background

1.  The writ in this action was issued on 20 February 2009 with a general indorsement of claim : “The Plaintiff’s claim is for damages (together with interest thereon and costs) for the Defendant’s breach of its expressed and implied obligations under its employment contract with the Plaintiff for the period of 31^st May 2005 to 27^th November 2007.”

2.  On 29 April 2009, the Defendant took out an application to strike out the Plaintiff’s claim pursuant to Order 18, rule 19(1)(d) of the Rules of the District Court (“RDC”) and the inherent jurisdiction of the Court. Further or alternatively, the Defendant sought, in the same summons, to have the action dismissed pursuant to Order 19, rule 1 of the RDC.

3.  On 12 May 2009, after hearing the parties, the Court ordered that this action be stayed pending the outcome of HCLA 29 of 2008, which was an appeal lodged by the Plaintiff in respect of the assessment of compensation under section 32P of the Employment Ordinance, Cap. 57 (“EO”).

4.  On 30 October 2009, the Plaintiff, who was then still legally aided and was represented by Messrs. Au-Yeung, Cheng, Ho & Tin, took out a summons to seek leave to file and serve his Statement of Claim out of time.

5.  On 5 November 2009, upon the application of the Defendant to restore the hearing of the summons aforesaid and after hearing the parties, the Court ordered that the stay of proceedings be lifted and that both the Plaintiff’s summons and the Defendant’s summons be fixed for hearing.

6.  These are the applications now before me.

The Related Proceedings

7.  There is no dispute that on 12 July 1999, the Defendant started employing the Plaintiff as a bus driver. On 9 July 2003, the Plaintiff sustained an injury to his neck in the course of his employment with the Defendant. Later on, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the Plaintiff’s incapacity and issued a certificate of assessment dated 26 May 2005 (“the Certificate”). In the Certificate, the Plaintiff’s permanent loss of earning capacity arising from the said injury was assessed at 2%. The Plaintiff objected to this assessment. On 30 May 2005, the Defendant received a copy of the Certificate and it is not disputed that by that time, the Defendant also had notice of the Plaintiff’s objection raised in respect of the assessment. On 22 September 2005, the Board issued a certificate of review of assessment (“the Review Certificate”) which confirmed the earlier assessment of 2% loss of earning capacity. However, additional periods of sick leave were certified.

8.  On 31 May 2005, the Plaintiff requested that he be allowed to resume work with the Defendant. However, the Defendant required the Plaintiff to provide a medical certificate certifying that he was fit to do so. The Plaintiff failed to provide such a certificate. The Defendant then treated the Plaintiff as being absent from work and did not pay him any wages starting from 1 June 2005.

9.  On 21 September 2005, the Plaintiff brought proceedings (“LBTC 4787/2005”) in the Labour Tribunal (“the Tribunal”) against the Defendant, claiming for wages in lieu of notice, end of year pay, severance pay, long service payment and compensation under section 32P of the EO on the ground that his employment had been wrongfully terminated without a valid reason and in contravention of section 48 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”).

10.  On 26 January 2006, Presiding Officer Tang of the Tribunal, after hearing the parties, found that the Defendant’s conduct in the matter amounted to constructive dismissal of the Plaintiff and the date of the dismissal was 31 May 2005. However, Presiding Officer Tang found that there was no contravention of section 48 of the ECO and he dismissed the claim under section 32P of the EO.

11.  The Plaintiff appealed against Presiding Officer Tang’s finding concerning section 48 of the ECO but there was no challenge in relation to the finding concerning the constructive dismissal. On 26 March 2007, the appeal was heard in the Court of First Instance (HCLA 7/2006) and the Honourable Mr. Justice Yam held that the constructive dismissal indeed contravened section 48 of the ECO. The appeal was allowed and the case was remitted to the Tribunal for assessment of compensation under section 32P of the EO.

12.  The matter then went before the Court of Appeal (CACV 122/2007). In the judgment dated 27 November 2007, the Court of Appeal, by a majority, dismissed the appeal and ordered that the matter be remitted to the Tribunal for assessment of compensation under section 32P of the EO. Again, no challenge was mounted in this appeal against Presiding Officer Tang’s finding concerning the constructive dismissal.

13.  On 1 August 2008, Presiding Officer Own of the Tribunal, after hearing the parties, made a nominal award of compensation in the sum of HK$1. The Plaintiff appealed and the appeal was heard in the Court of First Instance before the Honourable Mr. Justice Poon (HCLA 29/2008). In the judgment dated 14 September 2009, the appeal was allowed with Presiding Officer Own’s award set aside and the matter was remitted to the Tribunal for assessment.

The Application to Strike Out

14.  The Defendant’s application is brought under RDC Order 18, rule 19(1)(d) and the inherent jurisdiction of the Court. The Defendant says that the Plaintiff’s claim should be struck out on the following grounds :

(1)  the subject matter of this action is within the exclusive jurisdiction of the Tribunal;

(2)  it is an abuse of process for the Plaintiff to seek to re-litigate matters which have, or could have, been decided in the earlier proceedings (LBTC 4787/2005) and the related appeals; and

(3)  the claim is barred by issue estoppel as the issue raised in this action had already been adjudicated in the earlier proceedings.

15.  Before I move on to examine the above grounds, it is important to remember that although Presiding Officer Tang found that there was constructive dismissal of the Plaintiff by the Defendant on 31 May 2005, the general indorsement refers to a claim for damages “for the Defendant’s breach of its expressed and implied obligations under its employment contract with the Plaintiff for a period of 31^st May 2005 to 27^th November 2007.” (emphasis added)

16.  How this alleged employment came about may be gleaned from the Statement of Claim sought to be filed out of time by the Plaintiff :

“6.  The Plaintiff sought assistance from the Labour Department on 21^st September 2005. Pursuant to the advice of the Labour Department, the Plaintiff filed a claim to the Labour Tribunal (LBTC 4787/2005) on the grounds, inter alias, that the Defendant terminated the employment contract without any valid reason and in contravention of Section 48 of the Employees’ Compensation Ordinance, Cap. 282 (hereinafter called “Section 48”). The Plaintiff included a claim under Section 32P of the Employment Ordinance (hereinafter called “Section 32P”).

7.   LBTC 4787/2005 was heard and determined by Presiding Officer Mr. Tang Kwok Kwong (“Presiding Officer Tang”). On 26^th January 2006, Presiding Officer Tang delivered his decision and it was held, inter alias, that the Defendant had constructively dismissed the Plaintiff on 31^st May 2005. Presiding Officer Tang did not award any damages to the Plaintiff under Section 32P. The Plaintiff appealed to the Court of First Instance in HCLA 7/2006.

…

12.  Although the Plaintiff and the Defendant continued their litigation as pleaded above, the Defendant re-employed the Plaintiff at some point of time after the constructive dismissal on 31^st May 2005. The re-employment was evidenced by the following facts :

12.1  The Defendant wrote to the Plaintiff on or about 20^th June 2005 to require the Plaintiff to produce a certificate from his treating doctor to prove his health condition so that the defendant could arrange work for him.

12.2  The defendant wrote to the Plaintiff again on or about 3^rd August 2005 to require the Plaintiff to produce a certificate from his treating doctor to prove his health condition so that the Defendant could arrange work for him.

12.3  Upon receipt of the Defendant’s aforesaid letters, the Plaintiff phoned and spoke to Mr. Siu Chun Wai (蕭俊偉) of the Human Resources Department of the Defendant. During the telephone conversation, the Plaintiff sought from the Defendant to allow him to look for alternate employment so as to earn his living. However, Mr. Siu Chun Wai informed the Plaintiff that he was an employee of the Defendant and in accordance with the provision of the employment contract, he could not look for other work without the Defendant’s consent. The Defendant refused to give the Plaintiff its consent.

12.4  On or about 3^rd January 2006, the Defendant issued a staff card, a medi-card and an Octopus meter card to the Plaintiff. The Defendant also issued members’ cards to the Plaintiff’s direct family members to enable them to enjoy free bus rides.

12.5  On or about 11^th January 2006, the Defendant paid a bonus of HK$8,740.00 to the Plaintiff for the year of 2005 in accordance with the employment contract.

12.6  At the hearing of LBTC 4787/2005 before Presiding Officer Tang, Mr. Andy Wong of the Defendant informed the Tribunal that the Plaintiff was the employee of the Defendant.

13.  For the matters pleaded in paragraph 12 above, the Defendant is estopped from denying that the Plaintiff was under its employ.

…

15.  After the Court of Appeal handed down its decision in CACV 122/2007 on 27^th November 2007, the Plaintiff realized that his employment relationship with the Defendant came to an end. He started to look for alternate employment.

16.  By the provision of the employment contract, the Plaintiff was not paid any wages during the term of his employment. He suffers damages which represent his earnings from 23^rd September 2005 to 27^th November 2007.

…

AND THE PLAINTIFF CLAIMS :

(a) A declaration that the Defendant re-employed the Plaintiff after 31^st May 2005;

(b) Damages for loss of wages as particularised above, i.e. HK$424,606.90;

(c) Damages for loss of chance to work and to accumulate experiences;

(d) Interest;

(e) Further and other relief; and

(f)   Costs.” (emphasis added)  

Ground (1) : Exclusive Jurisdiction of the Tribunal

17.  It is clear from the above that the Plaintiff’s claim in this action is essentially “a claim for a sum of money which arises from the breach of a term, whether express or implied, of a contract of employment” and is covered by paragraph 1(a) of the Schedule to the Labour Tribunal Ordinance, Cap. 25 (“LTO”). Section 7 of the LTO further stipulates that :

“  7(1)    The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

  7(2)    Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.”

18.  Insofar as the declaration is concerned, counsel for the Defendant submits that it is mere window-dressing and that there is no need for the Plaintiff to seek such a declaration. Counsel argues that if the Plaintiff were to file a claim in respect of the alleged re-employment in the Tribunal, the Tribunal, when dealing with the claim for non-payment of wages and the other related damages, would undoubtedly decide on the issue of whether there was such re-employment, and if so, its terms. Counsel submits that nothing else is dependent on the declaration and the seeking of such is merely a means employed by the Plaintiff to bring the action in this Court.

19.  I agree. I have also made reference to Citipost (Asia) Ltd. v Julian Robert Holliday CACV 111/2004, unreported, (8 February 2005) and Gain Hill (Hong Kong) Ltd. v Li Kin Yip & Anor. [2006] 4 HKLRD 186. As I have pointed out above, the Plaintiff’s only real claim in this action is for damages for breach of the alleged contract of re-employment. The declaration does not take the matter any further. Such is clear from the general indorsement and from the Statement of Claim. Given that the claim is within the exclusive jurisdiction of the Tribunal, it should be litigated in the Tribunal, not in this Court.

20.  In the course of arguments, counsel for the Defendant refers to Part VIA of the EO wherein the time within which a claim under that Part has to be brought is stipulated. It is not at all necessary for me to deal with this point as the Plaintiff’s claim in this action is for non-payment of wages and for other related damages arising from the alleged re-employment. The claim clearly falls outside Part VIA.

21.  For the reasons I have given, on ground (1) alone, I would order that the Plaintiff’s claim be struck out and the action be dismissed.

Grounds (2) & (3) : Abuse of Process and Issue Estoppel

22.  For the sake of completeness, I shall now deal briefly with the above two grounds which mainly centre on the argument that the issue sought to be raised in this action has already been determined in the earlier proceedings.

23.  Of the facts said to evidence the alleged re-employment set out in paragraphs 12.1 to 12.6, I note that other than the alleged telephone conversation with Mr. Siu during which Mr. Siu allegedly reminded the Plaintiff that he could not look for other work without the Defendant’s consent and that the Defendant refused to give such consent, all the matters particularised had been raised before Presiding Officer Tang during the hearing in LBTC 4787/2005.

24.  Moreover, although there was no mentioning of this particular telephone conversation with Mr. Siu, it is apparent from the transcript of the trial that, when the Plaintiff testified before Presiding Officer Tang, repeated references were made by the Plaintiff in respect of his various dealings with Mr. Siu. Therefore, if the Plaintiff considered it important or if he so desired, he could have raised this alleged conversation during the hearing in the Tribunal. That he did not do.

25.  On 26 January 2006, in giving the oral reasons for the judgment, Presiding Officer Tang mentioned that there was no legal basis for the Defendant to demand the Plaintiff to provide a medical certificate before arranging work for him. He further mentioned that he had considered the Defendant’s claim that the Defendant had never dismissed the Plaintiff, as well as the collection of the staff card and the medical card from the Defendant by the Plaintiff. However, Presiding Officer Tang’s finding was that there was constructive dismissal of the Plaintiff on 31 May 2005.

26.  It is therefore clear that, the alleged telephone conversation with Mr. Siu aside, all the matters particularised in paragraph 12 of the Statement of Claim had already been canvassed before Presiding Officer Tang. However, after considering those and despite the Defendant’s position that there was no dismissal, Presiding Officer Tang found against the Defendant and in favour of the Plaintiff. To now ask for a contrary finding to be made and to now argue that the Plaintiff was in the Defendant’s employment sometime after 31 May 2005 is to seek to have the issue reopened and re-litigated.

27.  Further, the transcript of the trial in LBTC 4787/2005 showed that the Plaintiff actually denied the Defendant’s claim that his collection of the staff card and the medical card signified that he was still in the employment of the Defendant. As to the payment of the year-end bonus, the Plaintiff told the Tribunal that he was at a loss as to why such bonus was given to him. It is therefore the Plaintiff’s clear position in LBTC 4787/2005 that he had already been dismissed by the Defendant despite the matters particularised in paragraph 12 of the Statement of Claim. The Plaintiff, however, now seeks to argue the contrary in this action.

28.  In the hearing before me, the Plaintiff says that although he referred to dismissal when he gave evidence in the Tribunal, what he actually meant was suspension from work. My observation is that not only is such different from the claim he made in the Tribunal, it is now also too late for the Plaintiff to change his case in this action.

29.  In CACV 122/2007, the Honourable Mr. Justice Lam said at paragraph 77 of the judgment, “… We are dealing with a case where the Claimant was held to be constructively dismissed by the Defendant on 31 May 2005, hence a case covered by (a) rather than (b). Although the reasons for such finding are not clear, parties agreed that it must be treated as binding for the purpose of this appeal.”

30.  In HCLA 29/2008, the Honourable Mr. Justice Poon made the same observation at paragraph 27, “At the risk of repetition, I have to reiterate that this finding of constructive dismissal is binding on the defendant….” and at paragraph 28, “Mr. Wong’s submission completely ignored the fact that the finding of constructive dismissal remains binding on the defendant. He cannot now re-open the determination by Presiding Officer Tang that the defendant’s request for the production of a fitness certificate by the claimant before allowing him to resume work was unlawful and unreasonable by relying on the statutory duty. …”

31.  Paragraph 18/19/11 at page 399 of the Hong Kong Civil Procedure 2010 reads :

“Re-litigation and res judicata – It may be an abuse of procedure to litigate matters which have, or could have, been decided in earlier proceedings. The basic rule is that, where a matter becomes the subject of adjudication, the court requires the parties to put forward their whole case and will not (except under special circumstances) permit them later to reopen matters which might have been brought forward as part of already concluded litigation … Unless it can be argued that “in the early stages of the first action (the issue) was such an oblique point that onlyintervening jurisprudence has revealed its true substance”, the failure to raise it earlier will not be excused …”

32.  Further, paragraph 170.027 at page 325 of Halsbury’s Laws of Hong Kong, vol. 11(2) 2008 Reissue, reads :

“Issue estoppel … A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. …”

33.  In view of what I have set out above, I do not consider that the Plaintiff is entitled to reopen the issue as to whether he was in the employment of the Defendant sometime after 31 May 2005 and which then somehow ended on 27 November 2007 when the Court of Appeal gave the judgment in CACV 122/2007.

34.  It is also important to note that, in this hearing, the Plaintiff told the Court that he himself finds it helpless to have to resort to the re-employment claim but that in view of the binding determination of Presiding Officer Tang concerning the constructive dismissal on 31 May 2005 and considering all the circumstances, he could only resort to this method. (“因為不能推翻2005年5月31日這個解僱日期，所以只好用‘再聘用’的情況追討。… 點解會搞出一個再次聘用呢？其實，我覺得這個理由的申索也好無奈，但考慮過所有案情，我們只好用這個途徑。”)

35.  Therefore, the Plaintiff’s own admission is that the claim in this action concerning the alleged re-employment is not at all genuine. The claim is so framed and pleaded in order to get round the determination made by Presiding Officer Tang. In my view, this is a clear case of an abuse of the process of the Court and it should not be allowed. I would therefore, for this reason, also order that the claim be struck out and the action be dismissed.

36.  When addressing the Court, the Defendant says that as he has issued the writ in this action, he has only made a claim for compensation in the Tribunal in respect of the period between 31 May 2005 and 22 September 2005. He therefore relies on this action to seek compensation for the period between 23 September 2005 and 27 November 2007. Be that as it may, I do not see how this can assist the Plaintiff in arguing that the claim should not be struck out and that the action be continued. Quite the contrary, this would appear to be another attempt to abuse the process of the Court by re-litigating a matter which should have been raised in the earlier proceedings.

The Application to Dismiss the Action

37.  Since I have come to the view that the claim should be struck out and the action dismissed, I do not consider it necessary for me to deal with the Defendant’s application made pursuant to Order 19, rule 1.

The Plaintiff’s Application to File the Statement of Claim

38.  Again, given my decision above, I refuse to grant leave to the Plaintiff to have the Statement of Claim filed out of time and the application is dismissed.

Order

39.  For the reasons set out above, I order that the Plaintiff’s claim be struck out and the action be dismissed. I also make an order that the Plaintiff is to pay the Defendant’s costs of this application, to be taxed if not agreed, with a certificate for counsel.