Kwok Hiu Chun Damien v. The Official Receiver

CACV 59/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2017

(ON APPEAL FROM HCB NO. 5440 OF 2012)

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Before: Hon Cheung, Kwan and Poon JJA in Court

Dates of Appellant’s written submissions: 19 October 2017 and 9 November 2017

Date of Respondent’s written submissions: 3 November 2017

Date of Decision: 14 December 2017

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.This is the appellant’s application for leave to appeal to the Court of Final Appeal against our judgment of 3 August 2017 with reasons for judgment given on 8 August 2017.

2.The appellant contends that the appeal involves issues of great, general or public importance.  The grounds that are set out in the amended notice of motion are as follows :

‘ 1. the appeal involves great general or public importance concerning the protection of the accrued or vested benefits under laws of the Mandatory Provident Schemes Funds (Cap. 485 Laws of Hong Kong) (“MPFSO”), the Occupational Retirement Schemes Ordinance (Cap. 426 Laws of Hong Kong) (“ORSO”) against the operation of the Bankruptcy Ordinance (Cap. 6 Laws of Hong Kong) (“BO”) for such disposition made, if justified, for the purposes of provisions of the Employment Ordinance (Cap. 57 Laws of Hong Kong) (“EO”) more specifically:-

(a) Whether section 58 of the BO attaches all the benefits of an ORSO scheme at the time a bankruptcy order is being made;      

(b) Whether section 16 of the MPFSO or any other provision under the MPFSO and/or ORSO or any other law would provide protection of the benefits in the schemes or disposition of any such benefits (for purpose of enjoyment by the scheme member or the preservation as minimum MPF benefits pursuant to Schedule 2 of the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap. 486 sub leg B”) (“the Exemption Regulation”); and

(c) Whether in the circumstances when a bankruptcy order is in force prior in time the employer to an ORSO scheme can still set off any benefits pursuant to section 70A of the ORSO for the purpose of meeting its LSP obligations under the EO and being relieved from making payment from the employer’s own resources.’

3.We will not grant leave.  As stated in our reasons for judgment, the exclusion application by the appellant was based solely on section 16 of MPFSO.  As section 16 is not applicable by virtue of section 6 of the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap. 485 sub leg B) (‘the Exemption Regulation’), the appellant has no basis to lodge his exclusion application.  As such, the three questions are not engaged and are academic.  The appellant submits that our interpretation of section 6 is wrong.  However, it is not said that the interpretation of section 6 is one of great, general or public importance.  What the appellant really wants is to have a second appeal on the interpretation of section 6 when this point is plainly unarguable and it is not shown that this is an issue which may affect a wide sector of employees in Hong Kong.

4.Accordingly the application is dismissed with costs to the respondent which we summarily assess at $60,000. The appellant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Wong Chao Wai Brian, instructed by Wong, Fung & Co, for the Appellant (Bankrupt)

Mr Anthony HK Chan, for the Official Receiver