Au Chi Kwong and Others v. Hsu Jung Chiao and Another

CACV003400/2001

CACV 3400/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3400 OF 2001

(ON APPEAL FROM HCLA 82 OF 2001)

Coram : Hon Cheung JA in Chambers

Date of Hearing: 16 November 2001

Date of Judgment: 16 November 2001

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J U D G M E N T

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History

1.The claimants had received an award in their favour in the Labour Tribunal against the Defendants. The Defendants lodged an application to the Court of First Instance for leave to appeal against that decision. The application will be heard on 5 December 2001. The Defendants had paid into the Labour Tribunal the award of $551,925.00 pursuant to the order of the Tribunal on 2 March 2001. This order was made when the Defendants applied to review the award. The review was refused. Out of $551,925.00, $235,488.30 was ordered to be released to the claimants. The Tribunal stayed the payment of the balance of the award pending the Defendants' application to the Court of First Instance for stay of execution of the award.

2.The Defendants applied, ex-parte, on 29 October 2001 to Chung J. for a stay of execution of the award. This was refused. The Defendants then lodged an appeal against that order. They now asked for an interim stay of execution of the award pending the outcome of the application for leave to appeal against the award.

The route

3.The Defendants had chosen a rather curious route in dealing with their case. Instead of issuing an inter-partes summons before the Court of First Instance seeking a stay of execution of the award pending the determination of the application for leave to appeal and at the same time applying ex-parte for an interim stay until the hearing of the inter-partes summons, the Defendants applied ex-parte for a stay of execution of the award pending the determination of the application for leave to appeal. This obviously is something that the Defendants are not entitled to obtain in an ex-parte application.

4.After Chung J. refused the application, the Defendants, instead of considering whether to apply by way of inter-partes summons for a stay, chose to appeal against that order. With the well-known state of the court's diary, the appeal is unlikely to be heard before the hearing of the leave application on 5 December 2001. The relief now sought by the Defendants from this Court will be in substance the full relief they are seeking in the appeal. It is not merely an interim stay but a complete stay of the award irrespective of the outcome of the appeal.

Recovery of money

5.Now that this application is before me I will deal with it accordingly. The basis for the application for stay before Chung J. was that the Defendants' application would be rendered futile if the balance of the funds was released, namely it would be extremely difficult, if not impossible to trace the whereabouts of those money, let alone getting it back from the claimants. The Defendants were simply unable to provide any basis for their contention. The Defendants knew the addresses of the claimants. They are not residents outside Hong Kong. The fact that they are employees does not mean the award is not recoverable. It is now said that there must necessarily be in every case some risk that, if money is paid out of court, it will not be recoverable in case an appeal is successful. The law clearly demands more than this.

Strong case?

6.The short time gap between the hearings, either before Chung J. on 29 October 2001 and the leave application on 5 December 2001 or between now and the leave application cannot form the basis of any stay of execution of the judgment. The principle is that the claimants are entitled to the fruit of their judgment unless the Defendants are able to show that there are strong circumstances justifying the stay. The Defendants said that they have a strong case for their appeal.

7.The Defendants had unilaterally reduced the rate of wages payable to the claimants. They said that this did not constitute constructive dismissal because a few days later they had paid back the difference in wages to the claimants. The claimants must be aware of the payment. If not, they would not turn up at work again when they ignored the order of the Defendants. The Defendants claimed that this justified the dismissal of the claimants. It is said that the Presiding Officer had failed to carry out the statutory duty of investigation by calling for the interviewing notes of the Labour Department with the claimants which would show that they knew of the payment.

8.The court can stay the execution if an applicant can show that he has very strong grounds of appeal : see World Trade Centre Group Ltd. v. Resourceful River Ltd. C.A. No. 70 of 1993. Clearly this would require a strong case to be made out. I am not satisfied that this is the case in the present application. This is not the appropriate place to deal with the merits of the Defendants' grounds of appeal but according to the Defendants' own case the payment was only made a few days after the claimants had stated that they would not accept the reduction and consider they had been unilaterally dismissed by the Defendants and that there would be no room for negotiation. Even assuming that the claimants had knowledge of the payment, the matter cannot be so decisive as to entitle the Court to say that the Defendants have a strong case on appeal.

9.The balance of the award is in court but unless a case is made out there is no reason why it should continue to remain there. Even at this stage of the proceedings the Defendants have not been able to show any special circumstances which would satisfy the stay. The application is refused.

Representation:

1st Claimant in person, absent

2nd Claimant in person, absent

3rd Claimant in person, absent

Mr. K.K. Pang instructed by M/s Siao, Wen & Leung for the Defendants