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HCLA 35/2024
[2025] HKCFI 5017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
LABOUR TRIBUNAL APPEAL NO 35 OF 2024
(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1859 OF 2024)
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BETWEEN
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曾治誠 |
Claimant |
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(TSANG CHI SHING RAYMOND) |
(Respondent) |
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and |
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中國國際金融控股有限公司 |
1st Defendant |
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(CHINA INTERNATIONAL FINANCE HOLDINGS LIMITED) |
(Appellant) |
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張憲林 |
2nd Defendant |
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(ZHANG XIANLIN) |
(Appellant) |
________________________
| Before: |
Deputy High Court Judge Alan Kwong in Chambers (Open to Public) |
| Date of Written Submissions: |
13 October 2025 |
| Date of Decision: |
5 November 2025 |
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D E C I S I O N
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Procedural Background
1. On 30 October 2024, Presiding Officer Minnie Wong of the Labour Tribunal (the “Presiding Officer”) allowed the Claimant’s claims against the 2nd Defendant and awarded a sum of HK$700,000 as salary in arrears.
2. By an extemporary decision on 28 March 2025[1], I dismissed the 2nd Defendant’s application for leave to appeal the Presiding Officer’s judgment.
3. On 9 April 2025, the 2nd Defendant took out an ex parte summons under CAMP 73/2025 seeking leave to appeal my decision.
4. As pointed out by the Registrar of Civil Appeals on 14 May 2025, pursuant to section 32(3) of the Labour Tribunal Ordinance (Cap 25), the refusal by a judge in the first instance to grant leave to appeal was final, and thus the 2nd Defendant’s ex parte summons dated 9 April 2025 was liable to be dismissed.
5. In the circumstances, on 2 June 2025, the 2nd Defendant filed an amended ex parte summons. Instead of seeking leave to appeal my decision, the 2nd Defendant asked the Court of Appeal to set aside my decision and to order that the matter be re-opened.
6. On 29 September 2025, the Court of Appeal dismissed the 2nd Defendant’s amended ex parte summons under CAMP 73/2025: see [2025] HKCA 893. Cheung JA held that:-
“9. We will dismiss the 2nd defendant’s Amended Ex - Parte Summons :
1) The 2nd defendant by the Amended Ex-Parte Summons is effectively asking this Court to set aside the Judge’s decision of 28 March 2025, when there is no evidence that the 2nd defendant has applied to the Court of First Instance to re - open the matter for review. Although the written submission of the 2nd defendant stated that the order of the Judge had not been drawn up, Chan Yee Ling Elaine at [12] has already made clear that the Court of Appeal would not take it upon itself to re - open the matter when such has not been considered by the Court of First Instance. Whether the matter will eventually be re - opened is a matter for the Court below and it is an exercise of discretion.
2) Chan Yee Ling Elaine at [10] has made clear that in Lilik, the legal error that was corrected by the Court of Appeal was that the first instance judge was erroneous in his belief that he had no jurisdiction to re - open/re - consider his decision in refusing leave to appeal against a decision of the Labour Tribunal before the order was perfected. These facts are completely different from the present case if there is no evidence that the 2nd defendant has even applied to the Court of First Instance to re- open the matter.”
7. For reasons best known to the 2nd Defendant’s legal representatives, they have not drawn up the order in respect of my decision on 28 March 2025.
8. By letter dated 14 October 2025, the 2nd Defendant applied to re-open my decision on 28 March 2025. To this end, the 2nd Defendant has lodged written submissions prepared by counsel[2].
9. In gist, Mr Kelvin Leung (counsel for the 2nd Defendant) contended that I failed to consider the 2nd Defendant’s fourth intended ground of appeal, namely, even if the Claimant is taken to have been employed as a personal assistant, the employment was with Wadeitin Co Ltd, not the 2nd Defendant.
Deliberation
10. For the following reasons, I have no hesitation in dismissing the 2nd Defendant’s application to re-open the matter.
11. First of all:-
(1) There is no basis to suggest that I overlooked the 2nd Defendant’s fourth intended ground of appeal.
(2) As pointed out in my decision on 28 March 2025, the Presiding Officer of the Labour Tribunal duly placed weight on the contemporaneous telephone messages, which showed that the 2nd Defendant was the Claimant’s employer. In paragraph 8 of my decision, I stated that:-
“8. In finding that an employment relationship existed, the Presiding Officer placed weight on the contemporaneous telephone messages exchanged by the parties. For instance:-
(1) Document C24(4) showed that the parties discussed when [the Claimant] should commence employment, and [the 2nd Defendant] indicated that he would revert by phone.
(2) Document C24(8)-(9) showed that [the 2nd Defendant] gave various instructions for carrying out some translation works, and [the Claimant] carried out translation works for a Mr Ngai.
(3) Documents C17 and C28 showed that when [the Claimant] demanded payment of the outstanding salary of HK$700,000, [the 2nd Defendant] did not refute [the Claimant’s] demand…and/or clarify the position.”
(3) In paragraphs 21, 23, and 24 of my decision, I further stated:-
“21. As found by the Presiding Officer, the reality was such that [the Claimant] did persistently carry out work instructions coming from [the 2nd Defendant], and when [the Claimant] demanded the outstanding salary, the 2nd Defendant did not assert that he was not entitled to the salary as he was not an employee at all.
……
23. I note that the telephone messages show that [the Claimant] would apply for leave from [the 2nd Defendant] and that the [Claimant] would report to the 2nd Defendant as to where he worked and what he did. There is no question that the telephone messages are reliable contemporaneous evidence.
24. The aforesaid matters support the conclusion that an employment relationship existed between [the Claimant] and [the 2nd Defendant].”
(4) In the premises, it is clear I was of the view that the Presiding Officer had duly considered the contemporaneous documentary evidence, and the contemporaneous documentary evidence showed that the Claimant’s employer was the 2nd Defendant. On the evidence, the Presiding Officer was entitled to find that the Claimant’s employment was with the 2nd Defendant.
(5) The 2nd Defendant had made submissions on the point, which I did not accept. I do not see any sound reason why the 2nd Defendant should have a second bite of the same cherry.
12. Second:-
(1) The 2nd Defendant contends that it is open to me to re-consider the matter as the order in respect of my decision on 28 March 2025 has not yet been drawn up.
(2) In Andayani v Chan Oi Ling [2000] 4 HKC 233 at 237D, Keith JA pointed out that:-
“There must, of course, come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. But when does that stage arrive? The answer given by the common law is when the judge’s order has been drawn up, entered or otherwise perfected. ”
(3) Order 42, rule 4(1) provides that subject to Order 42, rule 4(2) (which is not applicable):-
“…every order of the Court shall be drawn up unless the Court otherwise directs”.
(4) As pointed out in Hong Kong Civil Procedure (2025) (Vol 1) at para 42/5/4:-
“Party by whom order to be drawn up- It is the responsibility of the party or solicitor having the custody of the summons, notice or other documents on which an order required by the Rules of Court to be drawn up is indorsed (O.42, r.4) to draw up that order. (Such a party is sometimes referred to as having “the carriage of the order”….)
(5) My decision against the 2nd Defendant was made almost 7 months ago on 28 March 2025. I do not see any legitimate reason why the 2nd Defendant, which pursued the present proceedings on an ex parte basis, did not take steps to draw up the order in respect of my decision.
(6) In the absence of any exceptional circumstances, the 2nd Defendant’s legal representatives cannot refuse to draw up the order, so as to allow the 2nd Defendant to have an opportunity to have the second bite of the same cherry. If this kind of abusive conduct were permissible, a party that fails to obtain leave to appeal can keep asking the court to re-open the matter so long as it does not discharge its responsibility of drawing up the order. The outcome would be absurd. This kind of gamesmanship must be discouraged. There is no room for a litigant to take advantage of his own unreasonable conduct or refusal to discharge responsibility.
13. Third:-
(1) In any event, out of an abundance of caution, I have considered the 2nd Defendant’s fourth ground of appeal afresh, albeit (for the reasons mentioned in the paragraph immediately hereinabove) this is not the appropriate course to take.
(2) I still come to the same conclusion.
(3) In my view, the Presiding Officer’s finding that the Claimant was employed by the 2nd Defendant was premised on a solid evidential basis. The Presiding Officer did not overlook the fact that the Claimant received payments via a bank account maintained in the name of Wadeitin Co Ltd. Indeed, Wadeitin Co Ltd was set up by the Claimant upon the 2nd Defendant’s instructions, and the Claimant’s sister, namely Tsang Chun Foon, was arranged to act as Wadeitin Co Ltd’s sole shareholder and sole director. Bearing in mind the totality of the evidence, even though the Claimant received payments via Wadeitin Co Ltd, this did not ipso facto prove that the Claimant’s employment relationship was with Wadeitin Co Ltd, rather than the 2nd Defendant. Had the Claimant been employed by Wadeitin Co Ltd as alleged, when the Claimant demanded payment of the outstanding salary, the 2nd Defendant would have rejected the Claimant’s demand on the basis that his employer was Wadeitin Co Ltd. This did not happen. As pointed out by the Presiding Officer, the Claimant acted on the instructions coming from the 2nd Defendant. Bearing in mind (i) the nature of the tasks that the Claimant performed and (ii) the shareholding and directorship of Wadeitin Co Ltd, it is hard to believe that the Claimant was Wadeitin Co Ltd’s employee, rather than the 2nd Defendant’s employee.
(4) It is important to bear in mind that findings of facts made by the Labour Tribunal are generally immune from challenge, and the Court of First Instance may only intervene if (a) the findings were made without regard to the relevant factors; (b) the findings were made without evidence; or (c) there was a failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained: see Mak Wai Man v Richfield Realty Ltd (HCLA 28/2015, 30 October 2015) at para 16(3) (per B Chu J).
(5) The threshold that the 2nd Defendant has to cross is a high one. I am not persuaded it is arguable that the Presiding Officer erred in finding that the Claimant was employed by the 2nd Defendant.
Conclusion
14. For all the above reasons, I dismiss the 2nd Defendant’s application to re-open my decision on 28 March 2025 under the letter dated 14 October 2025.
15. I make no order as to costs.
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(Alan Kwong)
Deputy High Court Judge
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Mr Kelvin Leung, instructed by M/s M.C.A. Lai Solicitors LLP, for the 2nd Defendant (Appellant)
[1] My extemporary decision is contained in a typed-up note that has been provided to the 2nd Defendant’s legal representatives.
[2] The written submissions were dated 13 October 2025.
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