Gammon (Hong Kong) Ltd v. Wong Leung Bong

CACV000049/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 49 OF 1972

(On Appeal from V.C.J. Action No. 2713 of 1972)

-----------------

-----------------

Coram: Blair-Kerr, Huggins & McMullin, JJ.

Date of Judgment: 12th February, 1973.

-----------------

JUDGMENT

-----------------

Huggins, J.:

1. This is an appeal by leave of the learned trial judge against a judgment in the sum of $1,460 entered against the Defendant. I cannot help thinking that if the claim had been properly pleaded in the first instance this appeal would never have been necessary. The Plaintiff alleged that he was employed by the Defendant as an accounts clerk "on monthly wages basis at $730 per month". The particulars of claim then read:

"The Plaintiff claims for bonus for year 1971 (equivalent to two months' wages) amounting to $1,460.00.".

That is all. There is nothing whatever to show on what basis the Plaintiff put forward his claim. It was little more than a claim of "indebted". The Defendant should not have pleaded to such particulars but should either have applied to have the writ struck out or asked for further and better particulars. Instead he merely admitted the employment and answered "not indebted", and upon those pleadings the case went to trial.

2. How, then, did the Plaintiff allege that his entitlement to the bonus arose? He said that he attended an interview with someone who was the assistant secretary of the Defendant and discussed the possibility of employment. At that interview he was told "that a bonus was usually payable but that the actual amount depended upon the profits of the company". Thereafter he received a letter from the Defendant offering him employment, setting out the salary, stating that there would be a term of probation and attaching a printed form of "Standard Conditions of Service for Local Staff", which he was asked to sign. Nowhere in these documents was there any mention of bonus. The Plaintiff signed the form and wrote a letter accepting the appointment. The Plaintiff appeared in person and apparently relied upon a passage in a textbook to the effect that "payment of a bonus might in certain circumstances be implied from the customary conduct of the employer". The learned judge correctly pointed out that on the evidence before him the customary conduct of the employer was such as to disentitle the Plaintiff to a bonus for the period in question, he having resigned at the end of that period and before the Defendant decided to pay a bonus for the period.

3. What the learned judge said was:

"It would appear that individual consideration was not given by the company but rather that a general bonus was paid in direct proportion to salary. There is thus imported into the contract of service a further term the proper construction of which is to my mind that the plaintiff was entitled to a bonus for any particular year in which the defendant company should declare a bonus for its staff".

With respect I do not understand why any term as to bonus should be "imported", never mind a term which could be so interpreted. The offer of employment was contained in the Defendant's letter and the acceptance was in the Plaintiff's letter. Neither mentioned bonus. What happened at the interview was in the nature of negotiation: there was clearly no intention that the parties should bind themselves in any way on that day. The whole contract was contained in the writings.

4. That is an end of the matter, but even if what was said at the interview could somehow be imported into the contract I do not think it would help the Plaintiff. What would be imported would be an entitlement to bonus such as the Defendant usually or customarily paid and on the judge's own findings only those employees still in the Defendant's employment at the time any approved bonus came to be paid would normally receive the bonus. Even that presupposes that the decision to award bonus which we know was made in respect of the period in question was in terms which would have led to a payment to the Plaintiff had he not left the company's employment. The learned judge upon a review of his decision speculated as to the terms of the resolution and assumed that the Plaintiff would have received something. I do not think it was legitimate to speculate in that way, especially as the learned judge expressly said that the Plaintiff could not have complained if the company had decided that he should receive no bonus.

5. I would allow the appeal, set aside the judgment and direct judgment to be entered for the Defendant.

12th February, 1973.

Representation: