Woon Thean Mun v. Hong Kong Airlines Ltd
Read the full judgment text of HCLA 27/2018 on BabelCite. This HCLA judgment was delivered on 18 January 2023.
1. The claimant (“ C ”) was an employee of the defendant (“ D ”). On 4 March 2008, C signed an employment contract (of the same date) with D (“ EC ”) pursuant to which he was employed by D as Manager, Training Projects (“ MTP ”). [1] D claimed C’s employment relationship with D ended upon expiry of the EC, and by and under cover of a “payment letter” dated 3 June 2011 to C (“ Payment Letter ”) D confirmed C’s last working/employment day with D was 3 March 2011, [2] and made final payment to C fo
Cited by 2 cases · Cites 20 cases
|
HCLA 27/2018 [2023] HKCFI 149 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE LABOUR TRIBUNAL APPEAL NO 27 OF 2018 (ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO LBTC 2604 OF 2011) ________________________
________________________ Before: Hon Marlene Ng J in Court Date of Hearing: 10 September 2021 Date of Handing Down Judgment: 18 January 2023 ___________________ J U D G M E N T ___________________ I. INTRODUCTION 1.The claimant (“C”) was an employee of the defendant (“D”). On 4 March 2008, C signed an employment contract (of the same date) with D (“EC”) pursuant to which he was employed by D as Manager, Training Projects (“MTP”).[1] D claimed C’s employment relationship with D ended upon expiry of the EC, and by and under cover of a “payment letter” dated 3 June 2011 to C (“Payment Letter”) D confirmed C’s last working/employment day with D was 3 March 2011,[2] and made final payment to C for basic salary (1-3 March 2011), 12 days’ annual leave, gratuity (4 March 2008 to 3 March 2011) and employee’s MPF contribution.[3] But C claimed his employment with D had been renewed, and he suffered damages due to D’s breach of such renewed employment contract. 2.On 23 August 2011, C commenced his claim against D in LBTC2604/2011 (“LT Action”) in the Labour Tribunal (“Tribunal”) by filing his Claim Form (“Claim Form”)[4] to seek damages exceeding $32,000,000 for loss of salary, loss of gratuity (at 15% salary), loss of provident fund contributions from 4 March 2011 (day after termination of the EC stated in the Payment Letter) to 3 March 2016 (date of expiry of the renewed employment contract as C alleged), loss of 2,400 flying hours and rise in price of condominium.[5] 3.C’s claim in the LT Action was adjourned sine die until it was revived in 2017. It was tried before Deputy Presiding Officer Amy Chak (“DPO”) in October 2018 (“Trial”). C and his witness Captain Ryan Goh (D’s former Head of Corporate Safety,[6] “Goh”) gave evidence at trial. D called Mr Kenneth Thong (D’s former Chief Executive Officer and then Head of Corporate Governance and Safety International Affairs (“HCG”), “Thong”) to give evidence at trial. On 8 November 2018, the DPO delivered her judgment as follows (“DPO Judgment”) and gave oral reasons therefor:
4.C was dissatisfied with the DPO Judgment, so on 21 April 2018 C filed an Application for Leave to Appeal on Point of Law (“Leave Application”) with the Court of First Instance (“CFI”). The Leave Application set out C’s various intended grounds of appeal against the DPO Judgment (“1st Grounds”),[7] and reserved C’s right to add further grounds upon receipt of the DPO’s written judgment. In December 2018, C applied for legal aid.[8] On 23 January 2019, the DPO handed down written Reasons for Decision for the DPO Judgment (“DPO Reasons”). 5.At the first hearing of the Leave Application before this court on 15 February 2019, C sought an adjournment pending the outcome of his legal aid application. After hearing submissions from C, I adjourned the hearing of the Leave Application to 28 May 2019. In March 2019, the Director of Legal Aid (“DLA”) refused C’s application for legal aid.[9] C appealed against the DLA’s refusal of legal aid. On 6 May 2019, Master J Wong dismissed C’s legal aid appeal. 6.Meanwhile on 27 December 2018, without leave of the court, C filed 38 pages of additional intended grounds of appeal (“2nd Grounds”). Later, again without leave of the court, C lodged 92 pages of intended grounds of appeal dated 18 May 2019 (“3rd Grounds”) and 8 pages of intended grounds of appeal dated 24 May 2019 (“4th Grounds”). In short, P filed/lodged over 100 pages of intended grounds of appeal. 7.At the adjourned hearing of the Leave Application on 28 May 2019 (“Leave Hearing”), C appeared in person. I (a) granted leave for C to withdraw the 2nd Grounds, and (b) directed him to file the 3rd and 4th Grounds as his intended additional grounds of appeal. On the same day, C filed his affirmation exhibiting the 3rd and 4th Grounds as exhibits A and B thereto. 8.At the Leave Hearing, C submitted he had (at least) an arguable case that the DPO had committed fundamental errors of law and had failed to discharge her statutory duty to investigate in a material way, so leave to appeal against the DPO Judgment ought to be granted. After hearing from C, I reserved decision on the Leave Application. On 23 December 2019, I handed down decision on the Leave Application (“Leave Decision”), and granted the following order:
9.On 24 December 2019, C filed his Notice of Originating Motion (“NOM”) that annexed the 1st Grounds, the 3rd Grounds, the 4th Grounds and the Claim Form, and that sought the following reliefs: (a) claim for damages set out in the Claim Form, and (b) claim for reliefs, awards and orders prayed for in paragraphs (i)-(x) and (a)-(d) at pages 87-92 of the 3rd Grounds. 10.In December 2019, C applied for legal aid.[10] On 17 January 2020, Henry Yu & Associates filed Notice to Act on behalf of D. On 30 March 2020, C was granted legal aid. The DLA assigned V Hau & Chow as C’s assigned solicitors,[11] and further assigned Mr Ng as his assigned counsel.[12] On 6 May 2020, Clyde & Co filed Notice of Change of Solicitors on behalf of D. 11.Given the prolixity of 1st, 3rd and 4th Grounds, C’s appeal against the DPO Judgment cried out for needed case management to facilitate effective hearing of the NOM. As this court said in paragraph 22 of the Leave Decision, in over 100 pages of intended grounds of appeal, C raised myriad challenges to the DPO Judgment and the DPO Reasons, but those grounds “were not easy to understand, and C did not help himself by making convoluted, rambling and wide-ranging accusations”. Since C was granted legal aid and thereby had legal representation, it was only appropriate for C to distil and refine his prolix grounds of appeal, and set out (as was usual) succinct perfected grounds of appeal that he would rely on at the hearing of the NOM (“Perfected Grounds”), especially when his appeal against the DPO Judgment was, after all, only on point of law. 12.So at a hearing on 9 June 2020, I granted inter alia the following case management directions (“9/6/20 Directions”):
13.As C was given a further opportunity under the 9/6/20 Directions to formulate his Perfected Grounds by way of C’s I Subs (see paragraph 12(c)(ii) above), the following 4 matters were of note and were explained to the parties at the hearing on 9 June 2020:
14.On 14 September 2020, this court granted extension of time for C to lodge/serve C’s I Subs with consequential case management directions. On 9 October 2020, C lodged C’s I Subs. On 6 November 2020, D lodged D’s I Subs. In D’s I Subs, Mr Chain (and Mr T Ng with him), counsel for D, complained that C’s I Subs failed to clearly identify the source where each Perfected Ground that C relied on was argued in the LT Action (especially as C filed 14 pleadings/statements in such proceedings). In my view, there was some force in such complaint,[13] but D did what it could and lodged D’s I Subs, and reserved its right to contend the Perfected Ground(s) in C’s I Subs was/were not raised/ pleaded in the proceedings below. 15.A further matter of concern arose from paragraph 4 of C’s I Subs which stated as follows:
The 13/1/09 Email was not evidence adduced at the Trial and was not previously disclosed by C to D and/or to the Tribunal in the LT Action. Footnote 6 of C’s I Subs stated inter alia that “…… C has taken out or will take out a Summons for leave to admit the 2 Emails [ie the 13/1/09 Email which was said to be a reply to an earlier email dated 10 January 2009 by C (“10/1/09 Email”) (collectively “2 Emails”)] for the purpose of this appeal. As the purpose of admitting the 2 Emails is to show that the DPO had failed to properly investigate the said issues, the 2 Emails ought to be admitted for that purpose ……” However, no such summons had been or was taken out when C lodged C’s I Subs. 16.2 months later, on 10 December 2020, I granted leave for C to file the Summons referred to in the paragraph below, and to have such Summons returnable at the same time as the NOM Hearing. 17.A further 2 months later, on 8 February 2021, C filed a summons to seek inter alia the following reliefs (“Summons”):
18.On 27 August 2021, C lodged C’s II Subs. On 1 September 2021, D lodged D’s II Subs. In C’s II Subs, Mr Ng claimed D’s I Subs failed to answer C’s submissions in C’s I Subs that the DPO failed to properly investigate the issues of (a) whether the 2009 version of the COS (“2009 COS”)[14] formed part of the EC, (b) whether the EC had been varied and extended to 3 March 2016, and (c) whether the renewed EC could be terminated by 3 months’ notice or payment in lieu thereof because they were unanswerable. But, in my view, such contention reflected misunderstanding over the purpose of D’s I Subs as explained in paragraph 13(c)-(d) above, and D’s I Subs were not meant to set out the fullness of D’s substantive “answer” to C’s Perfected Grounds. 19.At C’s request, this court by written directions dated 20 January 2021 extended the hearing time for the NOM Hearing from half day to one day. Such hearing was returnable before this court on 10 September 2021. But 3 days before the NOM Hearing (ie on 7 September 2021), C filed his affirmation in support of the Summons and allegedly in response to D’s II Subs (“C’s Aff”). D objected to the admissibility of C’s Aff on the basis of its late introduction, C’s unjustified delay and consequential prejudice to D. After hearing from Mr Ng and Mr Chain at the NOM Hearing, I refused to grant leave for C to rely on C’s Aff for the purpose of the Summons and/or for the NOM Hearing, and I also reserved the question of costs. 20.At the outset, in light of the purposes of C’s/D’s I Subs explained in paragraph 13(b)-(d) above, at the NOM Hearing, Mr Ng was asked to identify in his oral submissions the primary sources from the 1st, 3rd and/or 4th Grounds for C’s Perfected Grounds in C’s I Subs. These clarifications were necessary to facilitate this court in deciding whether the Perfected Grounds fell within the scope and ambit of the leave granted for C to appeal against the DPO Judgment. 21.D had further concerns in light of the purposes of C’s/D’s I and II Subs as explained in paragraph 13(a) and (d) above. As Mr Chain correctly noted in paragraph 2 of D’s II Subs, this court was essentially concerned with the Perfected Grounds in C’s I Subs for C’s appeal against the DPO Judgment at the NOM Hearing. But Mr Chain complained that C’s position on his appeal had evolved with new matters raised even though he had been given opportunities to further frame his appeal by lodging C’s I Subs and to set out his submissions by lodging C’s II Subs, which new matters led to chaos since C was in fact not entitled to pursue those new matters at the NOM Hearing. This would be discussed in greater detail below, but suffice to give 2 examples here to illustrate Mr Chain’s contentions:
22.At the NOM Hearing, the 2 Emails were received on de bene esse basis with their admissibility reserved for determination in this Judgment. Mr Ng was asked to identify in the course of his oral submissions which Perfected Ground(s) in C’s I Subs and/or which aspect(s) of C’s II Subs and his oral submissions were reliant or not reliant on the 2 Emails. 23.Before I turn to consider C’s appeal under the NOM, it is necessary to start with the parties’ respective case and the DPO Judgment/Reasons. Since neither Mr Ng nor Mr Chain had any quarrel with the summary in the Leave Decision, I shall largely draw from the same in the account below. Further, for convenience, references in this Judgment to C’s documents and D’s documents in the LT Action are respectively identified as “C-xx” and “D-xx”, and references in this Judgment to the tabs/pages of the Hearing Bundle are identified, say, as “Axx/xx” and “Exx/xx”. II. PARTIES’ RESPECTIVE CASE 24.In the LT Action, C made the following arguments, and claimed against D for damages set out in the Claim Form (see paragraph 2 above)[15] for its breach of the Agreement referred to in (a) below:
25.At the Trial, D conceded that (a) the EC, which was the only agreement between C and D, should have expired by effluxion of time in November 2012,[21] (b) the EC was prematurely terminated, and (c) pursuant to clause 4 of the EC D had to give 3 months’ notice of termination or payment of 3 months’ salary in lieu of notice,[22] but D denied any enforceable Agreement to renew C’s EC.[23] D claimed it had full discretion whether or not to renew the EC, and any such renewal would have to (i) comply with the renewal procedure in the COS (ie the 2008 COS and subsequent versions thereof[24]) provided in the EC,[25] (ii) involve D’s 3 departments (ie the Human Resources Department, the Finance Department and the Senior Management) so that any pilot employment contract would only be renewed if the criteria of these 3 departments were met,[26] and (iii) there was no mutual agreement on the terms and conditions in writing and signed by C and D as required under the COS.[27] D alternatively argued that even if C’s EC had been renewed, it would have been renewed on the same terms and conditions of service in the EC[28] in which case clause 4 of the EC would have allowed D to terminate the renewed employment contract by giving C 3 months’ notice or 3 months’ salary in lieu of notice.[29] III. DPO JUDGMENT/REASONS 26.As to whether or not (a) C and D came to the Agreement and/or (b) an effective renewal notice had been given to C pursuant to clause 3 of the EC,[30] ie whether there was any Agreement that had the effect of renewing the EC,[31] the DPO noted C relied on (i) 2 oral agreements made with D’s then COO Lim (whom C claimed had the highest authority within D to confirm renewal of his EC[32]) and D’s then GMT Stewart as evidenced by the Contract Renewal Documents in August and November 2010 referred to in footnote 17 above,[33] and (ii) the Contract Renewal Documents which amounted to effective renewal notice under clause 3 of the EC.[34] 27.The DPO rejected C’s contentions,[35] and found as follows:
28.The DPO noted the normal retirement age was 60 years,[58] and D had absolute discretion whether or not to extend such retirement age. The email by D’s Becky Li dated 28 January 2011 stated the non-renewal was due to contract expiry or because of retirement age.[59] In fact, C reached 60 years in 2010, so the DPO found no evidence of “discrimination, unlawful, unfair unjust, unreasonable, wrongful, malicious, fraudulent (deception) actions” on D’s part.[60] 29.The DPO also disagreed Lim had absolute right of recruitment which even the Chairman[61] and/or Vice President Sun Jianfeng (“Sun”) could not intervene.[62] The DPO found C failed to rebut the clear evidence of the contemporaneous VPN approval form by D’s then (Acting) Director of Flight Operation (“DFO”) Captain Chow Shoon Yue (“Chow”) (but I note he was referred to variously as DFO or Acting DFO - see para 22 of C’s revised statement of claim dated 31 May 2017 at C45(19) and B9/270),[63] and from the relevant procedures concerning such VPN that showed Lim did not have such absolute right.[64] 30.The DPO held that C’s reliance on the email dated 18 May 2011 made after termination of his employment[65] was at best an expression of Lim’s intention to put forward a new contract renewal policy, but up till 2011 the normal retirement age was still 60 years under the 2011 COS (as referred to in footnote 24 above),[66] and in any event Sun stated in his email dated 18 May 2011 that the original contract would have to be followed, which meant the EC and the COS must prevail.[67] 31.The DPO took note that C lodged further written submissions after the Trial, and that D responded thereto with written supplemental submissions. The DPO found it undesirable and inappropriate for C to submit supplemental submissions after conclusion of the Trial particularly given the procedural history of the LT Action, and in any event the DPO found that for the reasons set out in D’s supplemental submissions C’s further submissions did not add further to his case.[68] 32.On the aforesaid analysis and reasons, the DPO rejected C’s case, but in view of D’s concession in paragraph 25 above (ie the natural expiry date of the EC should be November 2012), D was liable to pay C 3 months’ salary in lieu of notice for termination after commencement of the applicable conversion course pursuant to clause 4 of the EC.[69] 33.Given her aforesaid conclusion, the DPO found it unnecessary to deal with the further issue whether, if there were Agreement to renew the EC or if D had given effective notice to C as stipulated in clause 3 of the EC, D had breached the renewed employment contract, and if so, what would have been the damages for such breach.[70] But even if the EC had been renewed as C alleged (which the DPO disagreed), the DPO would have found the alleged renewed employment contract to have been renewed “with the same remuneration, benefit, terms and conditions of service” as per the email relied upon by C himself (see footnote 28 above), in which case clause 4 of the EC would have enabled D to terminate such alleged renewed employment contract by giving C 3 months’ notice or paying C 3 months’ salary in lieu of notice, so the result would have been the same.[71] 34.Although costs should normally follow event, the DPO noted C did not succeed on all of his claims, and she found C’s claim speculative and without basis whilst D’s concession was reasonable, so she exercised her discretion not to make any cost order.[72] IV. LEAVE DECISION 35.In the Leave Decision, I noted upon a quick review of the 1st, 3rd and 4th Grounds that they ran to over 100 pages. Whilst it appeared they ultimately attacked the findings made by the DPO, some aspects of such attack appeared to be a criticism of how the DPO approached C’s claim and the evidence in coming to her factual conclusions. Although an appellate court may not reverse/vary any determination made by the Tribunal on question of fact or receive further evidence on appeal, there was, at that stage, arguable basis to contend the DPO’s findings were arguably suspect (and hence arguably liable to be impugned) in the senses set out in paragraph 9 of the Leave Decision.[73] Further, the DPO Judgment/Reasons largely turned on construction of the EC, the COS and/or the emails/letters P relied on, and the vitality of such construction would be a matter of mixed fact and law, so interpretation in the relevant factual context as found by the DPO was also arguably amenable to appeal. 36.It also appeared that C (a) contended inter alia that the DPO failed to investigate, address and deal with or sufficiently investigate, address and deal with C’s claims of discrimination, victimisation, abuse of process, malice or gross negligence etc against him that allegedly underlied D’s conduct in terminating the employment relationship, (b) alleged that the DPO did not permit or sufficiently permit him to cross-examine witnesses on such matters on the basis that they were irrelevant, (c) claimed D terminated his employment prematurely without 3-months’ notice, 3-months’ salary in lieu of notice and/or just cause which would be similar or tantamount to summary dismissal, and (d) disputed the incorporation of the COS (particularly the post-2008 versions of the COS) as part of the contractual framework between C and D. Although such complaints would go to the DPO’s findings, they arguably amounted to challenges in the senses as explained in footnote 73 above. 37.Nevertheless, when this court granted leave for C to appeal against the DPO Judgment on the 1st, 3rd and 4th Grounds on the basis that they at least arguably met the threshold test for leave to appeal, I made clear it was inappropriate at that stage to canvass all the intended grounds that C put forward, which voluminous grounds could not be said to facilitate easy understanding. By the Leave Decision, this court also made clear that since no leave was granted for any further, additional and/or varied grounds of appeal, C could not rely on any ground of appeal extraneous to the 1st, 3rd and 4th Grounds in the NOM for appeal against the DPO Judgment. V. LEGAL PRINCIPLES 38.I have summarised the relevant legal principles in relation to appeals against awards, orders or determinations of the Tribunal in several of my earlier judgments, which I rely but do not repeat here. (a) Nature of appeal 39.General A party’s right to appeal against an award, order or determination by the Tribunal is limited to questions involving point of law or excess of jurisdiction (see section 32(1) of the LTO). On such appeal, the CFI may draw any inference of fact, but may not (a) reverse or vary any determination made by the Tribunal on questions of fact or (b) receive any further evidence (see section 35(2) of the LTO). The relevant legal principles are trite and well-established, and there was little disagreement between Mr Ng and Mr Chain on the applicable legal principles for appeals on errors of law from decisions of the Tribunal. 40.New point on appeal not taken below Mr Chain submitted that it is not open to an appellant to take a point for the first time on an appeal from the Tribunal which was not taken at the Tribunal below. Mr Chain cited Winsome Watch-Case Manufactory Ltd v Chan Hau Chung[74] in support of such proposition. In that case, the employee appealed against a decision of the presiding officer that awarded inter alia a severance payment in favour of the employee. The employer asserted on appeal inter alia that the claim was out of time. The learned judge considered the relevant law on this point, and concluded that a sensible reading of the relevant provisions in the LTO supported the presiding officer’s conclusion, which the learned judge considered to be right in law and well founded. But the learned judge went on to say there was force in the employee’s contention that “this is a point which it is really too late to take on appeal at all” (paragraph 15). That case involved a special limitation provision which expressly gave power to extend time only to the Commissioner for Labour, so it was imperative that “a limitation point should be taken at the proper time, even though this is a Tribunal before whom the parties may well be expected to appear in person” otherwise opportunity for asking the Commissioner for Labour to extend time (if there were a need for it or if there were prospective merit in such application) would have been lost. Hence, “if a point like this is to be taken it must be taken in the court below”. The learned judge added he strongly suspected that “in the ordinary course the Court of Appeal (“CA”) would refuse to hear a limitation argument which has neither been pleaded nor raised in the court below. That position is a fortiori because in many limitation periods the court has no power, and nobody has any power, to extend the period at all. In those circumstances and for these reasons, in my opinion, this appeal fails and must be dismissed” (paragraph 15). 41.It may be suggested that Winsome Watch-Case Manufactory Ltd was a special case in the sense that the limitation point concerned a special limitation provision that gave power to the Commissioner for Labour to extend time. But on proper consideration, the foundational imperative in an appellate court refusing to entertain a new point not raised in the first instance proceedings is fairness, ie the respondent will be unfairly surprised by a new point taken on appeal. It is this foundational imperative of fairness that underlied the Flywin doctrine[75] as a discretionary principle.[76] The Appeal Committee of the Court of Final Appeal in Secretary for Justice v Timothy Wynn Owen KC & anor[77] summarised and explained the first aspect of the Flywin doctrine as follows:
42.As explained in Timothy Wynn Owen KC & anor, whilst Flywin Co Ltd “refers to new points taken at a civil trial, it is a principle of general application”[80] (paragraph 20 and footnote 32). In my view, these principles apply also to appeals against awards, orders or determinations by the Tribunal, which appeals are on point of law and where the CFI may not reverse or vary any finding of fact by the Tribunal or receive any further evidence (see paragraph 39 above). Even though the presiding officer has a duty to investigate as explained in Part V(c) below, such duty, which is not absolute, does not require the presiding officer to take over the role of an advocate for a litigant. When a litigant’s pleadings/statements contain sufficient and viable claims or defences, the duty to investigate into any matter “which [the Tribunal] may consider relevant to a claim” does not require the presiding officer to ferret around for new potential points of claim or points of defence that have not been raised by the litigants.[81] To suggest otherwise would be to allow litigants to circumvent the aforesaid restriction on taking new points on appeal by blaming the presiding officer for not looking for new points that they themselves have not seen fit to raise. 43.This is borne out by 2 decisions of the CA in Sun Min v Hong Kong Ming Wah Shipping Co Ltd, and by the Appeal Committee of the Court of Final Appeal (“CFA”) in Hong Kong Ming Wah Shipping Co Ltd v Sun Min. In that case, X was employed by E (Hong Kong subsidiary of a Mainland China corporation M). X became pregnant and gave notice of this to E. X then received a transfer order from E for her to move back to Mainland China to work for another subsidiary of M. E maintained it was unaware of X’s pregnancy when the decision to transfer was made. X was unwilling to accept this transfer, gave written refusal to E, and eventually did not report for duty in Mainland China. E regarded her as having left, and dismissed her for disobedience of a lawful and reasonable order. X sued E in the Tribunal claiming that, contrary to section 15(1)(a) of the Employment Ordinance Cap 57 (“EO”), her employment had been terminated after she gave notice of pregnancy by the transfer order. The presiding officer found the transfer did not amount to a termination of X’s contract of employment, and dismissed the claim. On appeal by X to the CFI, the order was set aside by DHCJ Poon (as he then was).[82] Leave to appeal to the CA was given by Yuen JA on the basis of a point of law of general public importance. Consequently, E appealed against the judgment of DHCJ Poon (as he then was) arguing that (a) the contract of employment was between X and M and not with E, (b) if there was a relevant contract of employment between X and E, the proposed transfer of X did not constitute a determination of X’s employment, and (c) E was entitled to summarily dismiss X for wilfully disobeying E’s lawful and reasonable order by refusing the transfer. E also sought to adduce additional evidence to make out a case that the contract of employment was not made between E and X, and on the basis of the alleged new evidence, E sought a new trial. The CA dismissed E’s appeal and its application to adduce fresh evidence.[83] E then applied for leave to appeal to the CFA, claiming that such intended appeal raised questions of great general public importance. The CA refused leave and dismissed the relevant summons as well as an amended summons for leave to file/serve an amended notice of motion.[84] E renewed its application to the CFA for leave to appeal arguing inter alia there was a point of great and general public importance, ie (d) section 15(1)(a) of the EO did not apply where a transfer to another company in M’s Mainland China group was envisaged. The Appeal Committee dismissed the application as the grounds raised by E were not reasonably arguable.[85] 44.When the matter came before the CA, Tang JA (as he then was) held it was not open to E to argue that X’s employment had been terminated by E under section 9 of the EO (see paragraph 43(c) above) as it was not E’s case before the Tribunal and/or before the CFI (page 385). 45.When the matter went again before the CA for leave to appeal to the CFA, E tried to raise a further question as to whether section 23(2) of the LTO which prohibited legal representation for a party at the Tribunal infringed article 35 of the Basic Law. Tang JA (as he then was) said “[this] point was not raised before the judge nor before us. We do not believe that this is a point which ought to be permitted to be raised for the first time in the [CFA]” (paragraph 20). 46.On its application to the CFA, E argued that the transfer order was not a termination as section 15(1)(a) of the EO was not engaged (see paragraph 43(d) above). Ribeiro PJ held “…… it is a point not raised either before the magistrate [ie the presiding officer of the Tribunal] or the judge at first instance. A question obviously arises as to whether it is open to [E] to raise it now as a possible basis for leave to appeal” (page 81). It transpired that E’s new argument relied on section 17I of the Immigration Ordinance Cap 115 (“IO”) for E claimed the transfer order was a lawful and reasonable order made with a view to comply with section 17I of the IO (page 82). Ribeiro PJ held as follows (pages 82-83):
47.Appeal on point not pleaded below Mr Chain next submitted it is not open for an appellant on an appeal against an award, order or determination of the Tribunal to take a point on appeal which has not been pleaded in the court below. Mr Chain cited Nice & Well Ltd v Fu Mee Yuk Shirley[86] in which the appellant took 2 points that had not been pleaded. It was held that since the points had not been pleaded, so it was not open to the appellant on appeal. In my view, whilst hearings at the Tribunal are conducted in an informal manner (see section 20(1) of the LTO) without the procedural strictness of pleadings in civil cases (see Order 18 of the Rules of the High Court (“RHC”)) and points may arise as a result of the presiding officer carrying out his duty to investigate matter(s) which he may consider relevant to the claim, it is a question of degree. Where the parties have extensively canvassed their respective case in detailed pleadings, statements and/or submissions before the presiding officer at trial, the appellant may find it difficult to raise a new point that was not pleaded or argued in the proceedings at the Tribunal. 48.It is perhaps useful to refer to Cheng Loon Yin v Secretary for Justice & anor.[87] In that case, a hawker control officer was assaulted in the course of his duties. The trial judge found his assailant liable, but dismissed his claim against his employer. The officer claimed his employer should have provided him with an alarm to summons help and to deter the assailant, but the trial judge held it was difficult to see how the alarm would add to the walkie-talkie in summoning assistance or add to the safety of the officer. On appeal, the officer submitted he could have triggered the alarm before the 1st blow or between the 1st and 2nd blows, thereby lessening his injuries, but (a) whilst the failure to provide an alarm had been pleaded, it was not pleaded how the failure to provide the alarm would have contributed or made any difference to the incident that resulted in the officer’s injuries or the seriousness of those injuries (pages 878 and 884), and (b) this was not argued before the trial judge (pages 875 and 878). The trial judge drew no inference that the officer would have used the alarm had it been available because it was not pleaded or argued before him on such basis, and the CA could not draw such inference on the facts as found by the trial judge. Tang JA (as he then was) held that “[moreover], this is analogous to a new point taken on appeal which is fact sensitive and the facts would have been more thoroughly investigated had the point been taken below. So even if on the facts such an inference might have been drawn, I would not do so. The Judge who has heard the evidence …… was best placed to decide the point, had the point been taken. As I said, if it had been, no doubt the evidence would have been carefully explored. [Counsel for the appellant] has confirmed that no evidence was led from the plaintiff on the issue. Instead …… he relied on the proposition that causation was presumed” (page 878). 49.Although Cheng Loon Yin did not concern appeal from any award, order or determination by the Tribunal, it again emphasised the foundational imperative of fairness as explained in the discussions above, and suggested that taking a point that had not been pleaded on appeal was akin to taking a new point on appeal, and I reiterate paragraphs 40-46 above. 50.But Sun Min concerned appeal against the judgment of DHCJ Poon (as he then was) on appeal from the judgment of the presiding officer of the Tribunal. In that case, E argued before the CA there was no contract between E and X (see paragraph 43(a) above), but this was not a point that was raised in the statement of X at the Tribunal. Even if that had been raised as one of the defences in the hearing before the presiding officer, that defence was not pursued, and instead E argued that X had not been dismissed by E and that the transfer to Mainland China was an internal transfer in accordance with the employment contract (page 385). Although E argued that having regard to the inquisitorial nature of the proceedings in the Tribunal the presiding officer ought to have enquired into this question, Tang JA (as he then was) reminded as follows (page 386):
(b) Error of law and not fact 51.I reiterate my discussions of the relevant legal principles in (a) paragraphs 13-15 and 40 in my judgment in Chan Chi Ling Elwyn v Richfield Realty Limited,[88] (b) paragraphs 10-16 in my judgment in Vermeerbergen Peter Alfred v Swisstribe Limited,[89] and (c) paragraphs 44-46 of my judgment in Fung Tsun Tong v A Link Network (HK) Limited & anor.[90] Analogous principles drawn from appeals against decisions in the Small Claims Tribunal are set out paragraphs 30-34 of my judgment in A Workshop Communications Ltd v Tam Heung Man.[91] 52.Apart from reiterating the legal principles discussed in the above-mentioned judgments, it is useful to draw attention to 2 matters. First, I repeat what I have said in Chan Chi Ling Elwyn as follows:
This point was also made by Mr Chain in D’s II Subs, ie an attack on factual findings made by the Tribunal can amount to an error of law only if its conclusion is one that no reasonable tribunal could have reached.[92] 53.Secondly, Order 55 rule 7(7) of the RHC provides that the CFI shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court substantial wrong or miscarriage has been thereby occasioned.[93] Likewise, Mr Chain also submitted that even if it can be shown that a tribunal has erred on a point of law, if such error has no material bearing or impact on the outcome of the case, the appellate court should not order a retrial, citing in support of such principle my judgment on the analogous position on appeal from a decision of the Small Claims Tribunal in Yeung & Young Medicare Centre Ltd v潘贊生.[94] (c) Duty to investigate 54.As alluded to in paragraph 47 above, hearings at the Tribunal are conducted in an informal manner. The presiding officer may inter alia subpoena witnesses, order the production of any document, record, book of account or other exhibit and put to a party or witness such questions as he may think fit (section 20(2) of the LTO), and shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party (section 20(3) of the LTO). 55.I reiterate my discussions of the relevant legal principles in (a) paragraphs 89-91 in my judgment in Chan Chi Ling Elwyn,(b) paragraphs 17-21 in my judgment in Vermeerbergen Peter Alfred,and (c) paragraphs 47-52 in my judgment in Fung Tsun Tong. Analogous principles drawn from appeals against decisions in the Small Claims Tribunal are set out paragraphs 35-42 of my judgment in A Workshop Communications Ltd. Mr Ng cited a number of other authorities on the broad principles as to the exercise of the duty to investigate by a presiding officer,[95] which I have read, but they did not take the applicable legal principles any further than as set out in my previous judgments. 56.However, a few matters deserved to be highlighted:
(d) Adducing fresh evidence on appeal 57.In Sun Min, E on appeal to the CA argued inter alia that the contract of employment was between X and M and not with E (see paragraph 43(a) above), and sought to adduce additional evidence to make out such case, and then on the basis of the fresh evidence, E sought a new trial. I have explained in paragraph 50 above that this was not a point raised in E’s pleadings/statements, and even if it had been raised at the hearing before the presiding officer, it was not pursued, so the presiding officer did not fail to investigate a point that had been abandoned or not pursued. The CA rejected E’s application to adduce additional evidence (pages 386-387):
58.On the basis of the above observations by Tang JA (as he then was) (see paragraph 57(b) above), Mr Ng argued that notwithstanding the restriction in section 35(2) of the LTO, it was permissible to admit fresh evidence limited to the purpose of showing that had proper investigation been done the result of further investigation would have made a difference to the outcome (which Mr Chain described as the “Sun Min Exception”).[100] However, as Mr Ng conceded, such observations were merely obiter dicta. Further, the use of the words “may be”, “if” and “it is possible” indicated the hesitancy of the CA about the Sun Min Exception in face of the statutory restriction against receiving further evidence on appeal. In my view, at best Tang JA (as he then was) merely said even if there were the Sun Min Exception (but he left it open), it would not have availed E. But he did not confirm, obiter or otherwise, there was power to admit further evidence on appeal as Mr Ng suggested. 59.Indeed, Tang JA (as he then was) clarified the position when he gave reasons for the CA’s decision to refuse leave for E to appeal to the CFA. In the proposed amended notice of motion, E put forward the following question (paragraph 9):
Tang JA (as he then was) held this question could not arise in light of section 35(2) of the LTO. He said “…… [there] was an application to this court for leave to adduce additional evidence which we refused. The application did not satisfy the Ladd v Marshall requirements. In any event, we refused leave in the exercise of our discretion, even if, which we did not accept, we have the power to admit further evidence” (my emphasis) (paragraph 14). 60.This decision on proposed question 4 was not obiter, and it was important in 2 respects:
61.In relation to (b) above, ie on the premise that the Sun Min Exception was viable and C was somehow able to rely on it (which D denied and which I find highly doubtful in light of the above analysis), it still remained an exercise of discretion of the court whether or not to admit fresh evidence on appeal. On such assumed basis, the Ladd v Marshall requirements would become relevant so that fresh evidence is received in proper form. If affirmation evidence that verifies and explains the discovery, provenance and authenticity of the fresh evidence is absent, it is difficult to see how the Ladd v Marshall requirements can be satisfied. Moreover, given the circumscribed nature of the Sun Min Exception, then even if it is viable, the applicant will have to show there has been failure on the part of the presiding officer to investigate before the Sun Min Exception can be invoked to show that the result of further investigation would have made a difference to the outcome. The appellant cannot adduce fresh evidence to establish failure to investigate by the presiding officer, and thereby circumvent the restriction against receiving further evidence on appeal under section 35(2) of the LTO. 62.In C’s II Subs, Mr Ng suggested that refusal to accept the authenticity of the fresh evidence “is outdated and inconsistent with the purposes of O.27 r.4 (one of which is to encourage admissions) or the underlying objectives enshrined in O1A, r1. The proper approach should be that the parties should accept that the documents disclosed by the other side are genuine unless there is sound reason to be believe otherwise ……” 63.Mr Ng cited Gotland Enterprises Ltd v Kwok Chi Yau (No 2)[102] in support of his aforesaid proposition. In that case, Anthony Chan J dismissed the plaintiff’s late application made shortly before the scheduled trial for extension of time to file notices of non-admission as to authenticity of certain documents disclosed by various defendants. No explanation was advanced as to why the notices were not filed in time, so the learned judge found he was not in a position to exercise his discretion. He considered the application made at such late stage would cause hardship to the defendants who would then have to incur costs of adducing evidence on the authenticity of the documents. 64.Whilst Anthony Chan J’s observation as to lack of explanation for late application and hardship caused to the opposing party would have resonance with the present situation where (i) C failed to explain the lateness of the Summons and why the 2 Emails were not adduced for the Trial and/or for the Leave Application and (ii) D would suffer prejudice as it could have legitimately cross-examined C on the 2 Emails and/or adduced countervailing evidence (if any) had the 2 Emails been adduced at the Trial, the circumstances in Gotland Enterprises Ltd were far too different from the present appeal to have any relevance:
65.The above discussions showed clearly why the Ladd v Marshall requirements have to be satisfied for adducing fresh evidence on appeal (even if this were possible on an appeal from the Tribunal despite the restriction in section 35(2) of the LTO). I am unable to accept Mr Ng’s proposition in paragraph 62 above. 66.Mr Ng further submitted that fresh evidence ought to be received on appeal “so as to achieve the primary aim in exercising the powers of the Court to secure the just resolution of disputes in accordance with the substantive right of the parties”. He cited Astro Nusantara International BV and PT Ayanda Prima Mitra.[103] I am rather at a loss to understand the relevance of this case since it dealt with the issue of whether extension of time should be granted on an application to resist enforcement of an arbitral award under the New York Convention. Of course, such issue involved an exercise of discretion that required balancing the delay in making the application against its substantive merits (ie the arbitral tribunal was found to have lacked jurisdiction to make the awards against certain parties), and the procedural regime clearly urged the first instance court to give effect to the primary aim of securing a just resolution of disputes in accordance with the substantive rights of the parties (pages 143-144). Again, this concerned first instance proceedings and not any appeal from a resolution already made by the first instance court, and I am unable to see how this case displaces the need to satisfy the Ladd v Marshall requirements for adducing fresh evidence on appeal (even if this were possible on an appeal from the Tribunal given the restriction in section 35(2) of the LTO) which requirements are imposed to address the unfairness (or even injustice) to the other party who had succeeded at the first instance trial without being aware of the fresh evidence and the applicant having had opportunity in the proceedings below to adduce evidence. 67.Mr Ng next submitted that if this court was not minded to admit fresh evidence for the appeal in view of section 35(2) of the LTO, this court could allow the appeal and to remit the matter back to the Tribunal to be heard before a different presiding officer so that he/she could make appropriate investigation and relevant finding of fact. Mr Ng referred to 梁鴻章(Leung Hung Cheung) v 張頌偉(Cheung Chung Wai).[104] In that case, the presiding officer found the employee was dismissed by the employer pursuant to section 9 of the EO, which allows an employer to terminate the contract of employment without notice, and dismissed the employee’s claim. DHCJ To (as he then was) allowed the appeal in respect of the employee’s claim for paid annual leave. The learned judge noted the presiding officer did not explain why the claim for paid annual leave was dismissed. If his finding was that the employee was not entitled to compensation for paid annual leave on the basis that his contract of employment was terminated under section 9 of the EO, he must have misinterpreted section 41D of the EO (pages 301-302). If his finding was that the employee had already received compensation thereof, the finding was open to question as he did not address the discrepancies between the employer’s evidence (ie the employer’s copy of the wage receipt with annotation) and the employee’s witness evidence. At the trial, the employee did not produce his copy of the wage receipt (without annotation) for the presiding officer’s consideration, which was therefore new evidence (pages 302-303). DHCJ To (as he then was) said as follows (page 303):
68.In my view, there were 2 takeaways from Leung Hung Cheung when compared with Sun Min. First, the fresh evidence in Leung Hung Cheung being the employee’s copy of the wage receipt (without annotation) was directly relevant to matters/evidence already canvassed at the trial since it would show the annotation on the employer’s copy that was adduced at trial was subsequently added, which would open up possible need for re-evaluation of the available evidence and re-determination of the finding of fact. But in Sun Min, the fresh evidence sought to be adduced was on a point not taken at the Tribunal or in the CFI. Thus, the case was remitted back to the Tribunal for further investigation and finding for the former and not for the latter. This showed that whether a case will be remitted to the Tribunal for re-evaluation and re-determination depends on the circumstances. In refusing to leave to appeal to the CFA, Tang JA (as he then was) in Sun Min said “[whether] the case ought to be remitted to the [Tribunal] must depend on the circumstances of the case. It is an exercise of judgment akin to an exercise of discretion ……” (paragraph 12). 69.Secondly, even for fresh evidence that appeared to be directly relevant to issues canvassed at trial, DHCJ To (as he then was) in Leung Hung Cheung found himself bound by section 35(2) of the LTO and did not receive such fresh evidence for the appeal before him, which put in doubt the Sun Min Exception that Tang JA (as he then was) initially and diffidently left open, but later plugged. VI. OVERVIEW OF APPEAL/NOM 70.C’s I Subs set out 8 Perfected Grounds, which C’s II Subs grouped into 5 broad grounds of appeal. I propose to deal with the NOM/appeal under these 5 broad grounds, which, according to C, were essentially premised on the DPO’s alleged failures to investigate or to properly investigate the following matters (and C sought leave to adduce the 2 Emails as fresh evidence in support of Grounds A and C below):
C also raised other miscellaneous grounds, eg the DPO erred in her duty to investigate by going to the extent of cross-examining C as if she were the lawyer for D. 71.D’s I Subs complained C’s appeal was in truth an impermissible challenge to the DPO’s findings of fact that were substantially disguised as her “failure to investigate” (see paragraph 56(d) above). C’s 2nd Subs disputed such contention, and claimed a similar argument was rejected in Mallorca Joenalyn Domingo v Ng Mei Shuen[108] by B Chu J who cited what I said in Vermeerbergen Peter Alfred, ie that if a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (paragraph 13) (see footnote 73 above). But whether Grounds A-E were valid points of law in the senses explained in Vermeerbergen Peter Alfred (see footnote 73 above) or whether they were in fact nothing more than a guise for impermissible challenge to findings of fact as explained in Treasure Coast Limited v Nio Soang Tek[109] remained to be seen in the discussions/analysis below. 72.Mr Ng in C’s II Subs contended that D’s complaint that C’s appeal was an impermissible challenge to findings of fact that was substantially disguised as a “failure to investigate” by the DPO could not stand in face of the Leave Decision because in granting leave for C to appeal against the DPO Judgment this court was “keenly aware of the distinction between questions of fact made by the DPO and a challenge based on the DPO’s failure to discharge the statutory duty to investigate”.[110] But the threshold requirement for granting leave to appeal was whether the intended appeal had arguable grounds,[111] and it still remained to be seen at the appeal proper whether on point of law as explained in Part V above C could establish valid challenge to the DPO’s factual findings. 73.Further, D argued that since C did not challenge the No Authority Finding[112] (as described by Mr Chain,[113]ie the DPO in dismissing C’s claims in the LT Action held as a matter of fact that the alleged renewal of the EC had not been approved by the relevant personnel/departments of D with authority to do so), C’s NOM/appeal would fail in limine. D also disputed the authenticity and admissibility of the 2 Emails which C proffered as fresh evidence on appeal. VII. GROUND A 74.By Ground A, C asserted the DPO failed to properly investigate C’s position that the 2009 COS was not incorporated into the EC. Mr Ng submitted Ground A was elicited from paragraphs 32, 33 and 43 of the 1st Grounds,[114] and he expanded on Ground A at paragraphs 8-17 of C’s II Subs. It was said Ground A did not rely on or was not dependent on the 2 Emails, but the 2 Emails would strengthen such ground of appeal. On the other hand, D’s answer to Ground A was seen in paragraphs 20-24 of D’s II Subs. But apart from such specific contentions against Ground A, Mr Chain also relied on the No Authority and 3 Months’ Termination Notice Findings, which I will deal with below. (a) Overview of parties’ stance 75.C’s stance C’s I Subs claimed the DPO erred in law in failing to properly investigate the issue of whether the 2009 COS (described as “Employee Handbook (Pilot) Conditions of Service” on its cover page (F13/938) and issued on 20 March 2009 more than a year after C entered into the EC on 4 March 2008) formed part of the EC even though (a) C expressly raised this in his pleadings, statements and submissions filed with the Tribunal[115] and (b) C gave evidence at trial[116] that since he was employed as MTP (which fact was expressly stated in the EC itself) the 2009 COS that only applied to cockpit/line pilots (or non-management pilots) did not apply to him, so had the DPO properly investigated this issue, she would have found such COS did not form part of the EC. In C’s I/II Subs, it was said the question whether the 2009 COS formed part of the EC (ie Ground A) would directly impact on the question whether the EC had been revised/varied and/or renewed/ extended to 3 March 2016 (ie Ground B), so Ground A could not be said to be of insignificant and immaterial bearing as D alleged. But the DPO’s failure to investigate both issues led her to wrongly conclude (i) the 2009 COS formed part of the EC, and (ii) the EC had not been varied/ extended to 3 March 2016, both of which conclusions were unsupportable, which resulted in injustice in that a fair and proper determination of C’s claim could not be attained. 76.At the outset, I note Ground A as framed in C’s I Subs (also echoed in C’s II Subs) was limited to the DPO’s failure to investigate whether the 2009 COS formed part of the EC without complaint of incorporation of the 2008 COS as part of the EC. Indeed, it was C’s contention at the Trial that the 2009 COS was not incorporated into the EC since he refused to sign acknowledgment of receipt of the same (and other subsequent versions of the COS), and the 2008 COS was also inapplicable because it had been replaced by the 2009 COS and had become obsolete (see paragraph 24(b) above). But in C’s II Subs (see footnote 121 below) and at the NOM Hearing, Mr Ng tried to overcome C’s lack of challenge against the incorporation of the 2008 COS as part of the EC by arguing that the DPO made no finding that the 2008 COS formed part of the EC. This was a point highlighted by Mr Chain, and I will return to this below. 77.D’s stance D’s I Subs claimed the DPO made factual finding that there was no renewal of the EC between C and D[117] in that (a) there was no actual agreement to renew the EC (ie the No Agreement Finding),[118] (b) the renewal procedures in the applicable contractual framework which required renewal to be in writing (including clause 3 of the EC and clause 2.2.4 of the 2009 COS) had not been complied with (ie the Framework Non-Compliance Finding),[119] and (c) there was no approval of any renewal by D’s relevant personnel/departments (ie the No Authority Finding). It was said the DPO had appropriately and reasonably investigated this issue to the proper degree, and her conclusion that the 2009 COS was a binding part of the EC was amply supported by evidence.[120] D claimed that in any event this issue had insignificant/ immaterial bearing on the DPO’s ruling/conclusion in light of (i) other contractual terms that also imposed requirement for renewal of the EC to be in writing, which terms were not challenged on appeal (eg clause 3 of the EC[121] and clause 1(f) of the 2008 COS[122]), and (ii) the DPO’s finding that even if the EC were renewed, it would have been renewed on similar terms including a clause that would allow termination by payment of 3 months’ salary in lieu of notice (ie the 3 Months’ Termination Notice Finding). (b) Discussion 78.Mr Ng submitted that managers (or management pilots) (of which C was one) must be distinguished from cockpit/line pilots (or non-management pilots), which distinction was evident in paragraph 5 of D’s 3rd supplemental statement dated 23 January 2018:[123]
It was said there was abundant evidence to show the 2009 COS was only applicable to cockpit/line pilots (or non-management pilots) but not to managers (or management pilots), and since C was employed in the position of MTP (which was expressly provided in clause 1 of the EC[125]), he was a manager (or management pilot) and not a cockpit/line pilot (or non-management pilot), so the 2009 COS did not apply to him. 79.At the NOM Hearing, Mr Ng submitted the inapplicability of the 2009 COS to managers (or management pilots) in contra-distinction to cockpit/line pilots (or non-management pilots) could be seen from the following:
80.On the aforesaid basis, Mr Ng submitted it was clear the 2009 COS was not applicable to C who was a manager / management pilot and not a cockpit/line pilot / non-management pilot, but on this issue (ie whether or not the 2009 COS applied to C) the DPO failed to properly investigate (1) C’s evidence, (2) C’s documents, (3) C’s pleadings and (4) C’s submissions:
81.Mr Ng submitted the above matters clearly showed “there is a need for further investigation before a determination can be made”,[152] and the DPO’s failure to properly investigate the issue of whether the 2009 COS formed part of the EC resulted in injustice in that a fair and proper determination of the claim could not be attained. In support thereof, Mr Ng also tried to harnass my observations in the Leave Decision. He claimed I have said at paragraph 24 therein that “…… C disputed the incorporation of the [COS] (in particular the post-2008 versions of the [COS]) as part of the contractual framework between C and D ……”, which complaints amounted to challenges to the DPO’s failure to discharge the statutory duty to investigate and such failure had given rise to injustice in that a fair and proper determination of the claim cannot be attained. But I went on to say at paragraph 24 that “…… [although] such complaints would go to the DPO’s findings, they arguably amounted to challenges in the senses as explained in paragraph 9 above [see footnote 73 above]” (my emphasis). In granting leave to appeal, the threshold requirement that C had to meet was to establish arguable grounds of appeal, so at that stage this court had not formed (and it would have been improper to form) any definitive view whether C’s contentions in fact amounted to permissible challenge on point of law against the DPO’s findings. The onus was on C to establish so at the appeal proper. 82.Mr Chain submitted there was no merit in Ground A because C’s II Subs and Mr Ng’s submissions were essentially to repeat and regurgitate the same submissions already made to the DPO, and effectively to suggest the DPO failed to properly investigate just because the DPO found against him. 83.Having carefully considered Mr Ng’s and Mr Chain’s submissions, I am not persuaded there was merit in Ground A. As Mr Chain submitted (and I agree), the issue of whether the 2009 COS was binding on C had been extensively canvassed before the Tribunal, and the DPO had reasonably considered the issue (see paragraphs 37-40, 55 and 59-60 of the DPO Reasons and paragraphs 27(a)-(e) above). Plainly, in the exercise of her fact-finding powers, the DPO placed weight on the express terms of the EC, as she was entitled to do, and it was her interpretation/construction of the EC (and thus her finding) that the 2008 COS and the 2009 COS were incorporated into and formed part of the contractual framework between C and D. 84.In my view, even if, as Mr Ng submitted, (a) C were a manager (or management pilot), (b) managers (or management pilots) were different from cockpit/line pilots (or non-management pilots), and (c) the 2009 COS did not generally apply to managers (or management pilots), it was not objectionable in principle under the law of contract for contracting parties to (i) agree to incorporate into their contract the terms of a master agreement (say, between service provider and customer) or general conditions of service (say, between employer and employee), and (ii) more importantly, agree to incorporate into their contract such terms of such master agreement or such conditions of service that on their face did not directly or apparently apply to the relevant parties, especially when the contracting parties agree that the express written contract between them (that incorporates such terms) shall prevail in case of conflict. 85.At the NOM Hearing, when this court put to Mr Ng the hypothetical situation of whether conditions of service specifically for, say, secretaries (“Sec COS”) would apply to a pilot if the pilot’s written employment contract by mutual agreement expressly (a) incorporated the Sec COS and (b) provided that in the event of discrepancy between the Sec COS and the pilot’s written employment contract the latter would prevail, Mr Ng accepted such incorporation of terms was contractually permissible as it was a matter of freedom of contract. But he fell back to argue that it was a matter of contractual interpretation or construction whether the Sec COS was so incorporated into the pilot’s written employment contract, and one had to consider the surrounding circumstances to see whether the Sec COS was intended to apply to an employee employed in the position of pilot. 86.Given Mr Ng’s aforesaid recognition of trite contractual principles, the relevant question was whether and how the 2009 COS was contractually incorporated in the EC. The DPO investigated this issue and made express findings. The DPO Reasons referred to the actual terms of clause 12 of the EC,[153] which provided that “[additional] rules, regulations, rights, benefits or protection from time to time promulgated under the Conditions of Service Cockpit Crew [ie COS] also form part of this contract ……”, and the DPO’s finding (ie her interpretation or construction of clause 12 of the EC) was that such clause specifically and expressly incorporated the COS.[154] 87.There was some suggestion from Mr Ng that “the DPO made no finding that the 2008 EC [should be COS] formed part of the EC”.[155] In my view, this was clearly incorrect because the DPO held that “[it] is clear, however, that the [EC] has duly incorporated the [COS] and its subsequent versions and that the entire set must be taken as the contractual framework that was agreed and underpinned the parties’ relationship” (my emphasis),[156] and “[the] “01 January 2008 Condition” [ie the 2008 COS] clearly formed part of the contract between [C] and [D] [D-4(4) – ie clause 12 of the EC] as analysed above”.[157] This was bolstered by 4 further points from the findings by the DPO:
88.The aforesaid approach to the evidence was well illustrated by how the DPO addressed the Becky Li Email upon which C / Mr Ng placed weight for Ground A. In the Transcript referred to in footnote 116 above, the following passed between the DPO and C at the Trial:[161]
Plainly, C was referring to the Becky Li Email and suggesting the 2008 COS was for non-management pilots so that for managers like him “…… we don’t have this [2008 COS] ……” But as explained above, quite apart from whether the 2008 COS was generally intended for cockpit/line pilots (or non-management pilots) and not managers (or management pilots) and whether C was employed in the position as manager, C still had to face up to the contractual framework binding between him and D as expressly provided for in the written EC that they signed. I do not see the above extract from the Transcript as a failure by DPO to investigate the Becky Li Email. Instead, the DPO, having considered such email that was brought to her attention, fairly raised with C a viewpoint premised on the express terms of the EC signed by both parties (and C did not dispute the EC was the contract binding on both C and D) that incorporated the 2008 COS as part of the EC in order to give opportunity for C to address this. As explained in Chitty on Contracts,
And here the 2008 COS was made available to C and he signed to acknowledge receipt of the same and to confirm he would abide by the rules and regulations stated therein (see paragraph 87(b) above). 89.In my view, notwithstanding any suggestion that the 2009 COS were applicable to cockpit/line pilots (or non-management pilots) and not to managers (or management pilots), the DPO’s fact-finding process seen in above analysis and her findings on the contractual framework between C and D that included the incorporation of the 2008 COS as part of the EC was sufficient and unassailable. Further, as Mr Chain submitted, the incorporation of the 2008 COS as part of the EC had significance because Ground A essentially challenged the DPO’s alleged failure to investigate whether the 2009 COS formed part of the EC. But such ground of appeal ignored the 3 Months’ Termination Notice Finding, which I return to below. 90.Turning to the 2009 COS, the DPO also found the 2009 COS was applicable to the EC on the basis that (a) “…… the [EC] has duly incorporated the [COS] [ie the 2008 COS which was the relevant version at the time as explained above] and its subsequent versions ……”,[164] and (b) “…… as of 3 June 2011, the parties’ contractual relationship continued to be governed by, inter alia the latest version of the [COS]. It is therefore [the DPO’s] finding, as at March 2011, the [2009 COS] governs the parties conduct in performing the contract including the contract renewal”.[165] 91.Clause 12 of the EC expressly incorporated not only the 2008 COS, but also the additional rules, regulations, rights, benefits or protection “from time to time promulgated” under the COS. Whether these words, in the circumstances, were enough to incorporate the 2009 COS into the EC, ie whether D could be said to have fairly and reasonably brought the 2009 COS to the notice of C to form part of the EC, was a question of fact,[166] and thus the DPO’s finding that those words in clause 12 of the EC were apt to incorporate the 2009 COS (ie a subsequently promulgated version of the COS) as part of the EC was a finding of fact. Moreover, 2 matters were of note. First, the DPO cited DBS Bank (Hong Kong) Ltd v Chan Chesta & anor[167] for the proposition that separate terms and conditions as well as subsequent versions thereof could be incorporated into the written contract by express reference.[168] Secondly, if there were clear words of incorporation in the written contract (and the words of clause 12 of the EC were there to be read), it made no difference whether or not C had actually read or paid attention to the 2009 COS, which proposition was clearly supported by relevant authorities (see also Landale Development Limited v Zhum Heng Development Limited,[169] Credit Suisse Financial Products v Societe Generale d’Enterprises,[170] O’Brien v MGN Ltd,[171] 7E Communications Ltd v Vertex Antennentechnik GmbH,[172] 張志明訴創庫迷你倉有限公司 (which discussed the above authorities),[173] and Public Institution for Social Security v Banque Pictet & Cie SA & ors[174]). 92.It must be noted that in the present appeal C did not challenge the DPO’s factual finding that the 2009 COS was incorporated into the contractual framework between C and D on the basis of the contractual principles, but Ground A was limited to the contention that C was a manager (or management pilot) and not a cockpit/line pilot (or non-management pilot), and hence the 2009 COS was not applicable to C. I am unable to see how such contention could establish a viable ground of appeal when notwithstanding C’s position as manager, clause 12 of the EC expressly incorporated the 2008 COS and 2009 COS, and the DPO made factual findings that (a) C signed the EC which clearly stated that the COS formed part of the contract, (b) at the same time C acknowledged receipt of the 2008 COS (and reference therein to the COS of 8 January 2008 was a mere typographical error) and confirmed he would abide by the rules/regulations in the COS, and (c) the 2009 COS was part of the binding contractual framework governing the contractual relationship between C and D as at March/June 2011.[175] 93.Mr Chain also submitted that even if the 2009 COS were somehow not binding on C (which D denied), (a) C would have remained bound by the 2008 COS as he signed to acknowledge receipt of the 2008 COS and to confirm he would abide by the rules/regulations in the COS (see paragraph 87(b) above), and (b) the contractual framework for renewal of the EC whether under the 2008 COS or the 2009 COS was similar,[176] so the material finding by the DPO (ie the Framework Non-Compliance Finding that the contractual procedures for renewal had not been complied with) would have been the same under the 2008 COS.[177] In short, the DPO made a factual finding to reject C’s contention that the 2008 COS was obsolete. Mr Ng in his oral reply submissions argued that C’s I/II Subs focused on whether the 2009 COS formed part of the EC because of the DPO’s finding that the 2009 COS governed renewal of the EC.[178] But the DPO did make the alternative finding that the 2008 COS was still applicable if somehow the 2009 COS was not, and Mr Ng had no answer except to say the 2008 COS was also only applicable to cockpit/line pilots (or non-management pilots) and not to C as manager (or management pilot). In my view, not only was this not raised as part of Ground A, such contention could not be supported in light of the discussions/conclusions above. In my view, there was no viable basis to undermine the DPO’s alternative finding in relation to the applicability of the 2008 COS to C as part of the contractual framework between C and D as discussed above. 94.In my view and as Mr Chain submitted, the above discussions/conclusions explained why Mr Ng sought to rely on new evidence (ie the 2 Emails) to bring a claim for rectification of the EC by reason of mistake[179] by ridding the EC of clause 12 and thereby also ridding the 2008 COS (and consequently the 2009 COS) from the contractual framework between C and D. 95.Mr Ng argued the 13/1/09 Email dated 13 January 2009 (which he admitted was sent (a) in response to C’s earlier 10/1/09 Email dated 10 January 2009 to D’s then COO Lim with copy to D’s then GMT Stewart, and (b) before the 2009 COS came into effect on 20 March 2009) showed that (i) the 2009 COS did not apply to C, so (ii) clause 12 of the EC did not reflect the parties’ true agreement, and (iii) the EC ought to be rectified for mutual common mistake between C and D or for C’s unilateral mistake of which D had knowledge.[180] 96.The 10/1/09 Email provided inter alia that:
97.The 13/1/09 Email provided inter alia that:
98.There was no dispute the 2 Emails were not adduced in the LT Action and/or before the DPO at the Trial, not referred to in the 1st, 3rd and 4th Grounds, and not relied on by C for the Leave Application for which this court granted leave for C to appeal against DPO Judgment. The 2 Emails first surfaced in C’s I Subs. That being the case, it was not easy to see how the DPO could be criticised for “failing” to investigate the 2 Emails that were not even before her, and/or how C could say he had leave of this court under the Leave Decision to pursue Ground A insofar as it relied on the 2 Emails (and for that matter Ground C that also relied on the 2 Emails). Nevertheless, C applied by the Summons for leave to admit the 2 Emails for the NOM Hearing “for the limited purpose of showing that had proper investigation been done by the [DPO], the result of the outcome of the claim in the [LT Action] would be different” (ie C relied on the Sun Min Exception). 99.Even if the Sun Min Exception was viable and/or the Ladd v Marshall requirements need not be satisfied (which I do not agree), it appeared that C’s intention to adduce the 2 Emails for the appeal was to show that had the DPO properly investigated the issue of whether the 2009 COS formed part of the EC when, according to C, the 2009 COS only applied to cockpit crew and not to managers / management pilots (of which C was one), the DPO would somehow have elicited the 2 Emails that would have led her to conclude there was common/unilateral mistake over clause 12 in the EC such that the EC ought to be rectified by removing such clause. But the foundational premise of such contention must be that the DPO failed to conduct proper investigation otherwise there would have been no basis to suggest what would have happened (and to adduce fresh evidence for such purpose) on the premise of “had the DPO properly investigated”. 100.In my view, even putting aside D’s other objections, there was no sufficient basis to suggest the DPO failed to conduct proper investigation. First, as seen in paragraphs 79-80 above, C on his own case was very much alive to the issue of whether the 2009 COS was applicable to him as a manager (or management pilot), and as a litigant in the LT Action he bore primary responsibility in the preparation and procurement of evidence for his case. Given the ambit of the evidence, documents, pleadings and submissions outlined in paragraphs 79-80 above that had been put before the DPO, I am unable to see how the DPO would be obliged to further investigate the matter when C, despite being aware of the issue and despite having placed such evidence, documents, pleadings and submissions on such issue before the DPO, did not see fit to adduce the 2 Emails in the course of the LT Action over the years. After all, the DPO was only obliged to conduct appropriate and reasonable investigation, which was a matter of degree depending on the circumstances of the case (including how C’s case was framed) (see paragraph 56(a) above). Secondly, in the LT Action C did not plead or advance a case for rectification to remove clause 12 (and hence any COS) from the EC. The duty to investigate any matter which the DPO might consider “relevant to a claim” did not require her to investigate matters that had not been asserted, especially when C already put forward an arguable cause of action and/or countervailing contention(s) to D’s defence (even though at the end of the day the DPO did not accept C’s case) as well as adduced evidence and made submissions in support thereof. There was no need for the DPO to take over the role of an advocate for C to consider the possibility of rectification of the EC (that had not been advanced) premised on the 2 Emails (that had not been disclosed/adduced).[181] In the circumstances and as explained in the above discussions/conclusions, the DPO could not be faulted for coming to her finding, quite irrespective of C’s assertion that he was a manager (or management pilot), and of the fact that the 2008 COS and the 2009 COS were expressly incorporated into the EC by clause 12 thereof and formed part of the binding contractual framework that governed the contractual relationship between C and D. As the DPO did not, in my view, fail to investigate the issue of whether the 2009 COS was part of the EC, even if the Sun Min Exception were viable, which I find to be highly doubtful, it would not have arisen. 101.This brings me nicely to Mr Chain’s submission that the 2 Emails were not being adduced for the Sun Min Exception, but instead they were being adduced as fresh evidence to make good Ground A by demonstrating (beyond what had been asserted/advanced in the LT Action) that clause 12 of the EC did not reflect the parties’ true agreement as it could not have been the parties’ intention for the 2008 COS and/or the 2009 COS (which were only applicable to cockpit crew) to apply to C who was employed as a manager (or management pilot), and therefore the EC ought to be rectified for mutual/common mistake between C and D or for C’s unilateral mistake of which D had knowledge. In short, C sought to adduce the 2 Emails to argue substantively that there was mistake in that (a) by the 10/1/09 Email C expressly claimed there was a “discrepancy” in that the EC contained clause 12 but C was “not bound” by the “non-Management” 2008 COS and other subsequent “non- Management” COS, and (b) by the 13/1/09 Email D’s then COO Lim expressly referred to “errors” in the EC, confirmed clause 12 of the EC “was a mistake which was included erroneously” in the EC, and stated neither the 2008 COS nor the 2009 COS applied to C, and on such fresh evidence it was said the EC should be rectified (i) for C’s/D’s common mistake by removing clause 12 (and thus removing the incorporation of any COS) as it “involves carrying into effect what the parties appear to have actually agreed that the document should say”,[182] or (ii) for C’s unilateral mistake which D was aware as the EC “contains a provision which one party knows that the other party thinks is not there, or knows that the other party is mistaken about its meaning, and the court may, as a matter of discretion, either refuse or allow [D in the present case] to enforce the contract as it would ordinarily be construed”.[183] In my view, these were substantive arguments going far beyond the Sun Min Exception. 102.In any event, upon careful consideration, I agree with Mr Chain’s 3 answers to C’s reliance on alleged common mistake and/or alleged unilateral mistake to seek rectification of the EC. First, at the NOM Hearing, Mr Ng submitted that the matter of mistake was expressly raised in the 3rd Grounds:[184]
Whilst Mr Chain did not say the point was not mentioned in the 1st, 2nd and 3rd Grounds, his subtler contention was that C did not ever rely on the 2 Emails in the 1st, 2nd and 3rd Grounds to contend there was common mistake or unilateral mistake for seeking rectification of the EC. Indeed, mistake was not a new point, and it was canvassed at the Trial and addressed in the DPO Reasons (see paragraph 104 below). Since C’s contention that rested on mistake was already elicited at the Trial, it was incumbent on him as claimant to bring forth the evidence in support thereof. I do not see any failure to investigate on the part of the DPO when she had no duty to act as advocate for C who had primary responsibility for preparation and procurement of evidence in support of his case. 103.Secondly, the alleged mistake was the incorporation of the 2008 COS as part of the EC by clause 12 thereof. Although clause 12 referred to subsequent versions of the COS that might be promulgated from time to time, the relevant COS as at 4 March 2008 was the 2008 COS. But Ground A of the Perfected Grounds limited its attack against the 2009 COS without express complaint against the 2008 COS, which explained why Ground A did not even expressly suggest the DPO failed to consider whether the EC should be rectified to remove clause 12 altogether for common mistake / unilateral mistake. I have carefully read Ground A in paragraph 1 of C’s I Subs and agree with Mr Chain’s above proposition. 104.Thirdly and more importantly, the DPO Reasons actually noted “[C] now alleges that the acceptance of these [COS] as forming part of his contract was a mistake”.[185] As a matter of factual findings, the DPO concluded there was no mistake on the basis that (a) C signed the EC which by clause 12 clearly stated the COS formed part of the contract, and at the same time C also signed to acknowledge receipt of the 2008 COS and to confirm he would abide by the rules and regulations stated in the COS,[186] (b) C with his background would not have been mistaken, so this was a “disingenuous argument seeking to avail himself of the claims sought”,[187] and (c) as a matter of law, in the absence of mistake, a lack of understanding of the contents, meaning, terms or effect of a document signed by a person of full age and understanding was not a ground to disown the document.[188] In light of the above, I cannot see how the DPO could be criticised as having failed to investigate the matter of mistake. 105.In short, Mr Ng asked this court to allow C to adduce the 2 Emails on appeal for a point that was not advanced in the LT Action, that was not referred to in the Perfected Grounds / C’s I Subs, that rested on the 2 Emails that was not before the DPO (or even before this court at the Leave Hearing), but the DPO had actually considered, addressed and made findings of fact that the 2008 COS and the 2009 COS formed part of the EC, and that there was no mistake by C in acknowledging the COS as forming part of his EC. In my view, the DPO had conducted appropriate and reasonable investigation on the matters that had material bearing on her findings/ruling, and she should not be criticised for having failed to investigate the issue of whether the 2009 COS was part of the EC and/or to investigate the 2 Emails when C, despite having alleged mistake at the Trial, did not see fit to disclose such documents to the DPO at the Trial or to this court for the Leave Application. To allow C to adduce the 2 Emails on appeal was tantamount to allow C to fly against the statutory restraint from receiving evidence on appeal on a point he had known and raised at the Trial and the DPO had dealt with, and to pull up his appeal by his own bootstraps (ie his own fresh evidence), which would be unfair to D and also the DPO. For the above reasons, including absence of any failure to conduct proper investigation by the DPO, I am unable to see how the Sun Min Exception could/would aid C, or how there would be sufficient basis to remit the matter back to the Tribunal for further investigation or finding. 106.So far, I had discussed C’s case for Ground A on the assumption of a viable Sun Min Exception that involved an exercise of discretion to admit fresh evidence on appeal. But as to the power to receive further evidence on appeal, one must start with section 35(2) of the LTO which provides that on an appeal from the Tribunal, the CFI cannot receive new evidence. I have explained in Part V(d) above that the Sun Min Exception was highly doubtful given that it was posed by Tang JA (as he then was) merely for argument’s sake (ie even if “we had the power to admit further evidence” which “we did not accept”). 107.In any event, even if the Sun Min Exception was viable, C did not even begin to satisfy the Ladd v Marshall requirements that would invite the exercise of discretion to favour receiving the 2 Emails as fresh evidence for the Sun Min Exception. C raised the 2 Emails for the 1st time in C’s I Subs, and D made clear at first opportunity in D’s I Subs that it did not accept the authenticity of the 2 Emails. Upon my rejection of C’s Aff, there was simply no statement/affirmation evidence from C in relation to the 2 Emails, including (a) the circumstances how they came into being, (b) how they were stored, discovered and retrieved, (c) why they were not disclosed at the latest by 29 January 2018 (ie 10 months before the Trial) when C adduced further documentary evidence,[189] (d) why they could not have been obtained with reasonable diligence for use at the Trial (especially when C was alive to the issue of whether the 2009 COS was part of the EC) and/or at the Leave Hearing (especially when C knew of the DPO Reasons and disagreed with the same) but somehow they became available for C’s I Subs in October 2020, and (e) why, despite the alleged importance of the 2 Emails, they were not referred to in any subsequent communications (eg those in 2011) that were placed before the DPO.[190] For reasons explained above, I am not persuaded as to the provenance of the 2 Emails, and there was sufficient basis to say that had the 2 Emails been adduced at the Trial, it would have provided fodder for D’s legitimate cross-examination to test their authenticity and/or provenance, which opportunity was now lost to D in view of the lateness of C’s attempt to adduce fresh evidence on appeal. Thus, even if the Sun Min Exception were viable, bearing in mind the foundational imperative of fairness, I would not have exercised my discretion to allow the 2 Emails to be adduced on appeal. 108.In all the circumstances, ground A had no merit. VIII. GROUND B 109.By Ground B, C asserted the DPO failed to properly investigate C’s position that the EC had been varied and extended to 3 March 2016. Ground B was set out in paragraphs 2, 3 and 5 of C’s I Subs, and relied on the Contract Renewal Documents. Paragraphs 21-29 of C’s II Subs expanded on Ground B, and the contentions therein still relied on the Contract Renewal Documents. D’s response was seen in paragraph 5 of D’s I Subs, which was expanded upon in paragraphs 25-30 of D’s II Subs, but D also relied on the No Authority Finding and the Framework Non-Compliance Finding made by the DPO. 110.In C’s 1st Subs, C claimed the DPO erred in law in failing to properly investigate the issue of whether the EC had been varied and extended to 3 March 2016 (ie Ground B) even though the following Contract Renewal Documents (and the DPO proceeded on the basis that these documents were authentic in the absence of challenge otherwise by D) clearly supported C’s case that the EC had been so revised and extended to 3 March 2016:
111.Mr Ng therefore submitted that the Contract Renewal Documents and 28/8/10 1st Email clearly supported C’s case as set out in C’s pleadings (see paragraphs 19 and 22 of C’s revised statement of claim dated 31 May 2017,[197] and paragraphs 4,[198] 11,[199] 12,[200] 17[201] and 26[202] of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2011), but the DPO failed to properly investigate these contemporaneous documents, which constituted a failure to “carry out investigation on all relevant matters” pertaining to the issue of whether the EC had been renewed to 3 March 2016, and hence her finding that there was no such renewal was insupportable.[203] C’s I Subs then claimed that since (a) parties to a written contract may effect a variation of the contract by modifying or altering its terms by mutual agreement,[204] and (b) the terms of a written instrument may be varied by a subsequent agreement whether oral of written,[205] the DPO (had she properly investigated the issue of whether the EC had been varied and extended to 3 March 2016) would have found the EC had been so varied and extended to 3 March 2016. 112.The D’s I Subs contended (and I agree) the DPO had considered the Contract Renewal Documents and had appropriately/ reasonably investigated this issue to the proper degree, which issue was in fact the primary focus of the DPO Reasons.[206] The Contract Renewal Documents that Mr Ng relied on for Ground B were precisely the 4 documents the DPO specifically considered and addressed by the DPO in paragraphs 6, 32-33 and 46-52 of the DPO Reasons (see paragraph 27(f)-(j) above), and she made “factual findings on what in context is a fair reading of these various emails and letters, concluding that, as a matter of fact, they amounted to a recommendation and not a contract”.[207] I agree with Mr Chain that on such basis Ground B was nothing more than a regurgitation of the same points taken at the Tribunal and a disguised attempt to challenge the DPO’s factual findings. 113.But then, Mr Ng had several “mutations” (as Mr Chain would describe them) in relation to Ground B. First, Mr Ng in suggesting the DPO failed to properly investigate whether the EC had been varied and extended to 3 March 2016 newly relied on the 28/8/10 1st Email in C’s II Subs (see paragraph 110(b) above) that was not referred to in the Perfected Grounds in C’s I Subs. But the Transcript showed that this email had been considered in the course of the cross-examination of C at the Trial:[208]
114.In C’s II Subs and at the NOM Hearing, Mr Ng submitted that the 28/8/10 Letter was attached to the 28/8/10 1st Email. But from the Transcript seen above, C under cross-examination was in fact not sure whether the 28/8/10 Letter was attached to the 28/8/10 1st Email. For such reason (ie the uncertainty of the attachment) and also because the 28/8/10 Letter was on D’s letterhead, even C’s own case came to rely more on the 28/8/10 Letter rather than the 28/8/10 1st Email. But that did not mean there was no proper investigation of the 28/8/10 1st Email. On the contrary, I find there had been sufficient and proper investigation of the document. In any event, the 28/8/10 1st Email did not take C’s case further than the Contract Renewal Documents, and the DPO had investigated those documents and found they did not establish the EC had been varied/extended to 3 March 2016 because the applicable contractual framework for renewal of the EC had not been complied with (ie the Framework Non-Compliance Finding).[209] 115.As Mr Chain submitted (and I agree), Ground B would not even be potentially viable unless C could overcome the Framework Non-Compliance Finding. Whilst Mr Ng agreed the DPO did consider the Contract Renewal Documents, he argued in C’s II Subs that she failed to properly investigate those contemporaneous documents and the 28/8/10 1st Email by wrongly putting emphasis on “form” rather than “substance”, and such “fatally” or “fundamentally” flawed approach resulted in an injustice in that a fair and proper determination of C’s claim could not be attained. But Mr Chain disagreed, saying that the very nature of such complaint betrayed the true nature of C’s appeal, ie it was in fact an appeal against factual findings dressed up as an appeal on law. 116.Mr Ng raised a number of arguments in support of his contention in the above paragraph. First, Mr Ng argued the DPO’s erroneous emphasis on “form” rather than “substance” (when she ought but failed to ensure “substance” would prevail over “form”) was seen in various parts of the DPO Reasons, particularly where she twice referred to “rules and procedures”[210] and also referred to “procedures or formalities”,[211] “necessary procedures for such renewal”,[212] “terms and procedures”[213] and the 2009 COS.[214] Secondly, Mr Ng argued that the DPO’s process of reasoning was tainted by her erroneous “form” over “substance” approach which led her to conduct brief/superficial analysis of the Contract Renewal Documents and the 28/8/10 1st Email that fell short of the requisite standard for her duty to investigate. He complained the DPO Reasons omitted references to important parts of the 27/8/10 Email,[215] the 28/8/10 Letter,[216] the 28/8/10 2nd Email[217] and the 8/11/10 Letter.[218] 117.Thirdly, Mr Ng argued the DPO’s wrong approach in putting “form” over “substance” led her to wrong conclusions:
118.It was obvious from the above that the “form” over “substance” argument was put forward to counter the Framework Non-Compliance Finding. However, if the “rules and procedures”, “procedures or formalities”, “necessary procedures for such renewal”, “terms and procedures” and the requirements for contract renewal set out in the EC and the 2009 COS were part of the contractual framework between C and D that governed their contractual relationship (as found by the DPO), I find it difficult to see how the need to comply with these contractually applicable requirements that were contractually incorporated and binding on the parties would be a matter of “form” and not a matter of contractual “substance”. This was particularly so when, upon my rejection of Ground A, the DPO’s finding that the 2009 COS was incorporated as part of the contractual framework between C and D was unassailable. Consequently, given such contractual framework (that included clauses 3 and 12 of the EC and clause 2.2.4 (expiration of contractual term) of the 2009 COS) was contractually binding on C, I find that compliance with such contractual requirements that were mutually agreed by C and D was a matter of “substance” and not a matter of mere “form”. Indeed, the DPO had carefully considered the parties’ respective stance and the aforesaid provisions of the EC and the 2009 COS under the contractual framework between C and D, and found C’s claimed renewal of the EC had not been complied with the relevant agreed requirements, ie (a) the option of renewal was at D’s discretion, (b) notice of renewal (if any) was to be given by D to C in writing “one (01) month prior to the Expiry Date” of the EC, (c) any renewal would be on “mutually agreed terms and conditions” with C and D having “signed (on a binding and final basis) documentation containing the terms and conditions applying to the renewed term on or before the Expiry Date”,[223] and (d) when C gave evidence he confirmed there was no document that complied with clause 2.2.4 of the 2009 COS to evidence contract renewal (see paragraph 113 above and paragraph 124 below). In my view, it could not be said that the DPO failed to properly consider and/or investigate these matters. Mr Ng had no answer except to reiterate that the promises by D’s then COO and/or D’s GMT to C in the Contract Renewal Documents and the 28/8/10 1st Email that the EC would have extended to 3 March 2016 was the “substance” that would trump the “form” of the requirements in the EC and the 2009 COS. I disagree the “form” over “substance” argument would trump the Framework Non-Compliance Finding that had been thoroughly discussed, analysed and concluded in the DPO Reasons (see paragraph 27(f)-(j) above). 119.This nicely brings me to the No Authority Finding (ie the DPO’s finding that as a matter of fact the alleged renewal of the EC had not been approved by D’s relevant personnel/department with the authority to do so), which Mr Chain submitted was a standalone basis to uphold the DPO’s conclusion that there was no renewal of the EC, and thus also a standalone justification for C’s claims to be dismissed.[224] In C’s I/II Subs (including the Perfected Grounds and/or Grounds A-E), C did not raise challenge against the No Authority Finding (see paragraph 73 above), and I agree with Mr Chain this meant that even if (which D denied) there were any merit to any of C’s arguments on appeal, say, Ground B, the inevitable conclusion/outcome remained that the EC was not validly renewed for lack of authority, and C’s appeal would therefore fail in limine and fell to be dismissed. 120.Mr Ng disagreed, saying that although the DPO found some “rules and procedures” had to be followed, she did not make any No Authority Finding that D’s then COO and/or D’s then GMT did not have authority to make the promises in the Contract Renewal Documents to vary and extend the EC to 3 March 2016. Upon careful consideration of the DPO Reasons, I am unable to accept such blinkered view of the DPO Reasons. 121.To properly understand the No Authority Finding, it would be useful to start with the parties’ respective pleas. C and D pleaded as follows:
122.At the Trial, Thong adopted and confirmed D’s pleaded case:[229]
The aforesaid recruitment process based on recommendation by the relevant department (eg recommendation by the DFO of the Flight Operations Department for recruitment of pilot or renewal of pilot contract) as explained by Thong was consistent with the VPN approval system as evidenced by the VPN approval form signed by D’s then (Acting) DFO Chow on 29 December 2010, raising a motion for “non-renewal of contract for [C] which was due in March 2011”, countersigned by D’s Vice-President Sun who agreed with the motion on 31 December 2010 and further countersigned by Stanley Kan of D’s Human Resources Department (see paragraphs 27(i) and 29 above) on 3 January 2011 with instructions to distribute to Becky Li of D’s Human Resources Department for processing the agreed motion.[230] As noted by the DPO, both Goh (ie C’s witness) and Thong confirmed the existence of the VPN approval system when they gave evidence, and even C (who did not raise any rebuttal evidence against the aforesaid VPN approval form) confirmed during the Trial that he would not challenge the authenticity of such document.[231] The existence of an approval system was also bolstered by C’s own email dated 16 August 2010 to Thong stating that “…… I would use my PR skill to bring in acting management pilots (6 month tenure) from our line pilot pool to work extra office hours …… in their off days …… And if they fit the bill, recommendation to the President through [Thong] may be made to allow them to take over certain existing management staff if necessary” (my emphasis).[232] 123.Likewise, C also articulated and repeated his pleaded stance at the Trial as follows:[233]
124.The DPO Reasons showed the DPO was keenly aware of D’s and C’s pleaded case and evidence, which she respectively summarised in paragraphs 23-24 and 33 of the DPO Reasons. As explained in paragraph 118 above, the DPO then carefully considered and weighed the Contract Renewal Documents against the contractual framework between C and D (including clauses 3 and 12 of the EC and clause 2.2.4 of the 2009 COS),[234] and went on to find (a) the rules and procedures contained in the EC remained valid and binding on the parties and (b) none of the Contract Renewal Documents on a reasonable construction displaced those rules and procedures or amounted to any renewal of the EC.[235] Plainly, the DPO was well aware of C’s case that “COO Ronal Lim had the absolute right of recruitment and even Chairman and/or Vice-President could have no right to intervene”, and in coming to the finding in (a)-(b) above she preferred D’s case/evidence and rejected C’s case/evidence that D’s then COO Lim had authority to bind D to renewal of C’s EC to 3 March 2016 despite absence of approvals of other departments (see paragraph below).[236] In my view, there was no basis to suggest the DPO failed to properly investigate the issue and/or consider the evidence. Her factual findings were unassailable on point of law, and she had given justifiable basis for finding the Contract Renewal Documents (which on their face did not appear to be mutually agreed and signed (on a binding and final basis) documentation that contained the already agreed terms and conditions of a renewed employment contract as required under clause 3 of the EC and clause 2.2.4 of the 2009 COS) as constituting only recommendation for the EC to be renewed (ie the Framework Non-Compliance Finding).[237] 125.In my view, the DPO plainly made the No Authority Finding. As D’s II Subs contended (and I agree), the No Authority Finding was plain from a combination of the following factual findings which would not have admitted any other conclusion:
126.In my view, (a) the DPO did make the No Authority Finding, (b) such finding was unassailable on point of law, and (c) there was no appeal against the No Authority Finding. That being the case, notwithstanding C’s complaints about the DPO’s investigation process, the No Authority Finding would be a overarching answer to Ground B, ie Lim/Stewart were to their knowledge and to C’s knowledge not duly authorised on behalf of D as being capable of validly agreeing to renewal of C’s EC, and Ground B must therefore fail. 127.Apart from the Framework Non-Compliance and No Authority Findings, there were also other miscellaneous answers to Mr Ng’s “form” over “substance” complaint. First, given the unassailability of the Framework Non-Compliance and No Authority Findings, there was no merit in the complaint that the DPO referred to parts of the Contract Renewal Documents in the DPO Reasons without quoting the extracts therefrom that Mr Ng relied on and set out in paragraph 110(a)-(d) above. I have set out in paragraphs 27-28 of Vermeerbergen Peter Alfred (see also paragraph 53 of Fung Tsun Tong) the relevant legal principles on the duty of the Tribunal to give reasons for decision, which I rely on but do not repeat here. Suffice to state here that although there is a general requirement that a tribunal of fact must give adequate reasons for its decision, this is a fact-sensitive question to be approached sensibly, and all that was required of the tribunal of fact was to show that issues that arise for serious consideration have been considered and why the tribunal has come to its decision without need to address every single issue. Indeed, the reasons may not require great elaboration and they may be brief.[243] Here, the DPO was well aware of C’s and D’s respective case, and she was alive to the Contract Renewal Documents, and had given adequate reasons for coming to the Framework Non-Compliance and No Authority Findings. In light of such findings, the DPO held that the Contract Renewal Documents did not amount to agreement for renewal of the EC or effective notice of renewal (ie the No Agreement Finding), and hence Lim’s/Stewart’s assertions in the Contract Renewal Documents were mere “recommendation” and would not have the significance Mr Ng attached to them to justify particular mention in the DPO Reasons. There was no merit to C’s complaints that the DPO failed to properly investigate the issue of whether the EC had been renewed and extended to 3 March 2016, and that such failure resulted in injustice in that a fair and proper determination of C’s claim could not be attained. 128.Secondly, on the question whether there was any agreement made between C and D to renew the EC, the DPO noted C’s claim that there were 2 oral agreements made by Lim/Stewart to vary and renew the EC to 3 March 2016 as evidenced by the Contract Renew Documents.[244] In light of the Framework Non-Compliance Finding, such alleged oral agreements flied against (a) clause 3 of the EC that required any renewal to be notified to C in writing before the expiry of the EC, and (b) clause 2.2.4 of the 2009 COS that required (i) the renewal notice in writing be given by D to C 1 month prior to the expiry of the EC and (ii) the terms and conditions applicable to the renewed term be mutually agreed and signed (on a binding and final basis) documentation by C and D on/before the expiry date of the EC. I agree with the DPO that these contractual provisions requiring renewal of the EC to be processed by written notice and by written/signed agreed terms and conditions for the renewed term were not discrepant, and they should be given effect.[245] 129.This was borne out by Lord Sumption JSC’s observations in MWB Business Exchange Centres Ltd v Rock Advertising Ltd.[246] That case concerned a no oral modification clause that provided that “…… [all] variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect” (page 125). I do not think this authority could be brushed aside, as Mr Ng tried to do, by saying there was not any no oral modification clause in the present case. Lord Sumption JSC of the English Supreme Court opined that where parties agreed to specified formalities (eg certain matters – variation in that case – to be set out in writing and signed by the parties), “the law should and does give effect to a contractual provision requiring specified formalities to be observed” (page 127). He explained that whilst “[party] autonomy operated up to the point when the contract is made, but thereafter only to the extent that the contract allows” (page 127). This reinforced the DPO’s findings that the alleged oral agreements as well as the Contract Renewal Documents did not amount to any definitive agreement by the parties to renew the EC, and that there was no mutually agreed and signed (on a biding and final basis) documentation by D and C containing the agreed terms and conditions that applied to any alleged renewal of the EC as required under clause 2.2.4 of the 2009 COS (which provision was incorporated by clause 12 of the EC), and no effective notice of renewal in writing before expiry of the EC as required under clause 3 thereof. In my view, there was ample basis to support the No Agreement Finding made by the DPO, which I find justified. 130.I now turn to Mr Ng’s 2nd “mutation” (so described by Mr Chain) to Ground B. In C’s I Subs, C complained that the DPO further erred in law in failing to properly investigate whether the Contract Renewal Documents constituted an estoppel whereby D was estopped from denying the EC had been renewed for a fixed term of 5 years upon the expiry thereof. It was unclear from C’s I Subs what species of estoppel was evoked. Specification came only in C’s II Subs which claimed that the common assumption shared between C and D (through D’s then COO and/or D’s then GMT and/or D’s then (Acting) DFO) that the EC would be renewed and extended to 3 March 2016 gave rise to estoppel by convention. 131.D had 2 answers to this. First, D’s I/II Subs pointed out that estoppel was not pleaded or raised at the Trial, and it should not be raised for the 1st time on appeal (see paragraphs 40-50 above). Secondly, there was no dispute that “an estoppel by convention is concerned with a common assumption relied upon as the basis upon which the persons sharing such assumptions enter into a transaction, with the word “transaction” to be understood here in the broad sense of the parties engaging in acts or omissions affecting their mutual legal relationship”,[247] and that the matter assumed must be clear and unequivocal, ie “the clarity required will seldom fall below what is unequivocal for the relevant purpose”, and “the extent to which the importance of clear and unequivocal statements is reduced in cases of estoppel by convention is probably small”.[248] Here, C relied on the Contract Renewal Documents to raise estoppel by convention, but in light of the No Agreement Finding, the Framework Non-Compliance Finding and the No Authority Finding, the DPO made factual findings that the Contract Renewal Documents amounted to “recommendation” only (and I have found that the DPO was justified in coming to such finding). Such finding precluded any clear and/or unequivocal basis/consensus to support the common assumption necessary for giving rise to an estoppel by convention. 132.I agree with D’s position in the above paragraph, and further agree with Mr Chain that C’s reliance on estoppel would not add anything further to the analysis. 133.Turning to Mr Ng’s 3rd “mutation” (so described by Mr Chain) to Ground B, at the NOM Hearing Mr Ng expanded the basis of Ground B by submitting that even if the 2009 COS was incorporated as part of the contractual framework binding on C and D and notwithstanding the Framework Non-Compliance Finding, there was an enforceable collateral contract that would trump the specified formalities in clause 3 of the EC and clause 2.2.4 of the 2009 COS, but the DPO failed to carry out proper investigation of pre-contractual 23/1/08 Email referred to in paragraph below that would have led to the conclusion of the existence of a collateral contract, and the DPO thereby deprived herself of the opportunity for considering the impact of such pre-contractual email on the EC. 134.At the NOM Hearing, Mr Ng relied on what he described as an important contemporaneous document that clearly showed D promised C his EC would be renewed for a term of 5 years, which showed such promise was given to C not only during the course of his employment with D (by the Contract Renewal Documents) but also before C commenced employment with D. The email dated 23 January 2008 (ie just before C left his then employer to join D) from D’s then GMT Stewart to C stated as follows (“23/1/08 Email”):[249]
135.Mr Ng pointed out that the 23/1/08 Email was expressly referred to in paragraph 1 of C’s revised statement of claim dated 31 May 2017:[250]
136.Mr Ng submitted that the 23/1/08 Email was important because it showed (a) the promise therein that C’s employment contract with D would be renewed for 5 years was made by D since its then GMT Stewart stated therein he had “spoken to our management” (presumably D’s Senior Management[251]) “to get [C] into [D] for the long term”, (b) D promised C that his employment contract would be renewed for 5 years upon expiry even before he commenced employment with D in order to “lure C to join D from Alteon”, and (c) D relied on such promise to leave his then employer Alteon to join D. On such basis, it was said it would be inequitable and unjust for D to go back on such binding promise. 137.Mr Ng complained that the DPO failed to investigate or properly investigate the important and contemporaneous 23/1/08 Email, which deprived her of the opportunity of considering the impact of such pre-contractual email on C’s employment contract, and had she done so, she would have found (a) D’s promise in the 23/1/08 Email to C was clear and unequivocal, (b) D was bound by its promise, and (c) C acted in reliance of D’s promise to leave Alteon to commence employment with D, so there was reliance and detriment on the part of C in acting on D’s promise in the 23/1/08 Email, which amounted to an enforceable collateral contract ancillary to but independent of the EC, which therefore had been revised and renewed to 3 March 2016. 138.But as Mr Ng rightly conceded, C’s allegation that the DPO failed to consider the pre-contractual 23/1/08 Email and to investigate or properly investigate whether it would amount to a collateral contract binding on D to renew the EC until 3 March 2016 was not raised as a Perfected Ground in C’s I Subs, and was not touched upon in C’s II Subs. Indeed, Mr Ng did not even suggest the issue of possible collateral contract was a point taken in the pleadings, raised at the Trial and/or canvassed in the 1st, 3rd and 4th Grounds. There was also no case on alleged misrepresentation based on the 23/1/08 Email whether before the DPO or on appeal, and Mr Ng did not rely on any alleged misrepresentation at the NOM Hearing. 139.But Mr Ng suggested that C’s allegation of a pre-contractual collateral contract based on the 23/1/08 Email was subsumed in C’s grounds of appeal, but having conceded that such allegation was not in C’s I/II Subs, he did not identify such allegations were subsumed under which part(s) of the 1st, 3rd and 4th Grounds. In my view, this was a fresh point that was not even raised as a point of law even at the stage of the Leave Application. In the circumstances, I am unable to see how C could be allowed to take a fresh point on appeal when no leave was granted by this court for such point to be taken in the Leave Decision. 140.More importantly, the issue of possible collateral contract based on the 23/1/08 Email was a fact-sensitive matter. In my view, raising this point for the 1st time on appeal fell foul of “state of the evidence” bar under the Flywin doctrine. If C had taken the point at the Trial, D could have adduced evidence to counter such point or at least cross-examined C on the pre-contractual communications and in greater depth on his contentions (eg the allegation that without the promise in the 23/1/08 Email he would not have signed the EC that eventually provided differently, ie that renewal of the EC was subject to the requirements in clause 3 thereof and paragraph 1(f) of the 2008 COS), and/or explored in greater detail C’s understanding and the effect of the entire agreement clause in clause 15 of the EC. Such concern was exacerbated by section 35(2) of the LTO that barred the CFI from receiving any further evidence on appeal from the Tribunal. In my view, it could not be said that there was no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to D if the point had been taken at the Trial. 141.Although surprised by this point taken by Mr Ng at the NOM Hearing, Mr Chain quickly rallied to inform this court the 23/1/08 Email was actually explored and investigated during cross-examination of C in the course of the Trial:[252]
142.It was obvious that questions about the 23/1/08 Email were put to C under cross-examination, and that the DPO fairly took C to the entire agreement clause in the EC (ie clause 15) for his comment. C agreed that as the EC provided “[we] disregard inducement, we don’t nothing”, “then this contract [ie the EC] stands”, which probably explained why C did not raise the issue of collateral contract in his pleadings, further pursue the same at the Trial and/or include the same in the 1st, 3rd and 4th Grounds as well as in C’s I/II Subs. It also explained why the issues of whether there was or was not any pre-contractual collateral contract, and if so, whether the “entire agreement” clause in clause 15 of the EC rendered extrinsic evidence of such inadmissible to denude the effect of any such collateral contract was not canvassed in the DPO Reasons. There was no finding by the DPO on the effect of clause 15 of the EC as C did not rely on pre-contractual collateral contract at the Trial. I am not satisfied that the DPO failed to adequately explore the 23/1/08 Email and the alleged pre-contractual collateral contract in light of the absence of C’s case on the subject. 143.Mr Chain further submitted that in any event, even if C were allowed to raise on appeal the DPO’s alleged failure to investigate the 23/1/08 Email and hence also the issue of possible pre-contractual collateral contract (which D disagreed), clause 15 of the EC being an entire agreement clause provided a complete answer as it would bar reliance on the alleged pre-contractual collateral contract that contradicted the terms of the EC that provided for renewal of the EC at D’s discretion pursuant to the express requirements in clause 3 of the EC and clause 2.2.4 of the 2009 COS that was incorporated pursuant to clause 12 of the EC. 144.Clause 15 of the EC provided as follows:
145.Mr Chain placed reliance on the following guidance on “entire agreement” clauses in Chitty on Contracts,[253] and submitted that the “entire agreement” clause in clause 15 of the EC excluded the alleged collateral contract based on the 23/1/08 Email:
146.Mr Ng did not cite any legal authorities on the effect of “entire agreement” clauses, but submitted the sample “entire agreement” clause set out in Chitty on Contracts was more elaborate and hence different from clause 15 of the EC. He suggested that clause 15 of the EC would not have the effect of denuding the alleged collateral warranty/ contract based on the 23/1/08 Email of legal effect. Whilst I accept that generally speaking and in the absence of any “entire agreement” clause, extrinsic evidence for establishing collateral contracts is an exception to the parol evidence rule,[254] the inclusion of an “entire agreement” clause in the written contract changes the picture as such mutually agreed contractual provision must be given legal effect. Mr Ng had no answer when pressed on what clause 15 of the EC as mutually agreed between C and D would exclude if its terms, as Mr Ng suggested, would not exclude any representation, warranty and/or collateral contract. All Mr Ng said was that he could only say what clause 15 of the EC would not exclude, and went on to boldly assert that maybe such “entire agreement” clause would not exclude anything. 147.Having carefully considered Mr Ng’s and Mr Chain’s submissions, I am unable to accept C’s / Mr Ng’s contentions. It is useful to first turn to the classic case on “entire agreement” clauses, ie Inntrepreneur Pub Co v East Crown Ltd.[255] In that case, clause 14.1 of the agreement between the public house owner and the tenant read as follows (page32):
The “entire agreement” clause in that case was a very simple one of “this Agreement …… constitutes the entire Agreement between the parties”. One of the issues before the court was whether such clause precluded the tenant from setting up an alleged collateral agreement, which turned on the true construction of the “entire agreement” clause (page 32). 148.In that case, Lightman J explained the purpose of “entire agreement” clauses as follows (page 33):
149.Further, as to the “entire agreement” clause in that case, Lightman J held as follows (page 33):
In short, whilst the abbreviated “entire agreement” clause might not preclude a claim in misrepresentation, it was apt to exclude any collateral contract/warranty. 150.Lightman J’s guidance have been adopted in a number of local cases, eg Edward Wong Finance Company Limited v Profit Making Investment Limited & ors,[256] Wing Siu Co Ltd v Goldquest International Ltd (No 2),[257] Natamon Protpakorn v Citibank NA,[258] Po On Auto Accessory Company Limited v Grand Faith Holding Limited,[259] Lucky Zone Holdings Limited v Winning Beauty Investments Limited & anor,[260] AVC Property Development Company Limited v Joyful Grace Trading Limited & anor[261] (see also China Jianxin Credit Services Limited v IR Resources Limited[262]). 151.In North Eastern Properties Ltd v Coleman & anor,[263] the vendor and purchaser of land entered into 11 contracts, each of which contained a clause which stated: “This agreement contains the entire agreement between the parties”. The purchaser argued that the written contracts failed to include an agreed term of the same, ie that the vendor would pay the 2% finder’s fee on exchange, and so fell foul of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (page 2717). Briggs J of the English Court of Appeal, referring to Lightman J’s observations on “entire agreement” clauses in Inntrepreneur Pub Co (pages 2727-2728), agreed with Lightman J “that the normal reason for the inclusion of an entire agreement clause is to dispose of the risk that some collateral contract or additional terms may be discovered in the undergrowth of the parties’ negotiations”, and also found such “entire agreement” clause useful in ensuring the land contract would not accidently be construed as conditional upon other expressly agreed terms so as to render such land contract void under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (page 2728). Longmore LJ also said as follows (page 2734):
152.In AIA Internatioinal Limited (formerly known as American International Assurance Company (Bermuda) Limited) v Shum Ka Wai & ors,[265] upon termination of service of the defendant insurance agents (engaged under Career Representative’s Contracts) by written notice, the plaintiff insurance company sued for refund of certain monetary incentives or bonuses paid to the defendants (paragraphs 4-5). The defendants asserted that the purported termination was an act of repudiatory breach on the plaintiff’s part which they had not accepted, and they counterclaimed for damages for breach and specific performance (paragraph 7). The defendants further pleaded as follows:
153.There was an “entire contract” clause in each of the Career Representative’s Contracts which read “(t)his Agreement together with the Schedule of Commission constitutes the basis of the entire contract between the parties herein” (paragraph 14). DDJ D Ho (as he then was) referred to the long line of cases that followed Lightman J’s observations in Inntrepreneur Pub Co (paragraphs 21-22) (see also paragraph 148 above), and found they served a complete answer to the defendants’ reliance on the Assurance to bar the plaintiff from invoking clause 23(b) of the Career Representative’s Contracts that allowed for termination of the contracts without any reason by either party upon 15 days’ notice in writing (paragraph 23). The learned judge went on to say as follows:
154.In Rock Advertising Ltd cited by Mr Chain, clause 7.6 of the agreement provided that: “This licence sets out all of the terms as agreed between MWB and the licensee. No other representations or terms shall apply to form part of this licence ……” Lord Sumption JSC, citing Lightman J’s observations in Inntrepreneur Pub Co, said an entire agreement clause was “intended to achieve contractual certainty about the terms agreed, in the case of entire agreement clauses by nullifying prior collateral agreements relating to the same subject matter” (my emphasis), and went on to say as follows (pages 128-130):
155.Plainly, the legal effect of the “entire agreement” clause in clause 15 of the EC is a matter of construction of the term,[266] but in the context of the EC and in light of the aforesaid authorities, I have no hesitation in concluding that the “entire agreement” clause as worded in clause 15 of the EC was apt to denude any pre-contractual collateral contract/warranty of legal effect, which provided a complete answer to C’s contention of the DPO failed to properly investigate the 23/1/08 Email and the alleged pre-contractual collateral contract based on such email. 156.In all the circumstances, there was no merit to Ground B. In any event, the DPO found that even if the EC were renewed, it would have been renewed on similar terms including a clause that allowed termination by payment of 3 months’ salary in lieu of notice (see clause 4 of the EC),[267] so the result would have been the same because D conceded and was ordered by the DPO to pay 3 months’ salary in lieu of notice under the DPO Judgment. I agree with Mr Chain that this standalone 3 Months’ Termination Notice Finding would have been an overarching and complete answer, but more of this in the discussions in relation to Ground C in Part IX below. IX. GROUND C 157.Ground C concerned the DPO’s alleged failure to properly investigate the issue of whether the “varied” and “extended” EC could be terminated by 3 months’ notice (see paragraphs I and IY of the 3rd Grounds), which correlated to paragraphs 4 and 6 of C’s I Subs and paragraphs 30-33 of C’s II Subs. D’s response thereto was found in paragraph 6 of D’s I Subs and paragraphs 14-19 of D’s II Subs. 158.Before I start to consider Ground C, I note this Perfected Ground was premised on a “revised/varied” and “renewed/extended” EC. On the face of Ground C and also plain from C’s II Subs and Mr Ng’s submissions in paragraphs 159-163 below, Ground C (premised as it were on a “revised/varied” and “renewed/extended” EC) was necessarily tied to Grounds A and B. This was quite obvious from the summary of Ground C in C’s II Subs, ie the DPO in arriving at the wrong conclusion that the EC had not been “varied” and “extended” to 3 March 2016 (ie Ground B) had, in effect, disabled herself from properly investigating the issue of whether the “varied” and “renewed” EC could be terminated by 3 months’ notice (ie Ground C), but instead hastily jumped to the wrong conclusion that even if the EC were “revised” and “renewed” it could still be terminated by 3 months’ notice or payment in lieu of notice (ie the 3 Months’ Termination Notice Finding).[268] But since I have upheld the No Agreement, the Framework Non-Compliance and the No Authority Findings and also rejected Grounds A and B above, there was simply no basis for C to assert the EC had been “renewed” or “extended”, so it followed there was also no basis for C to go on and further assert the “renewed” or “extended” EC had been “revised” or “varied” so it was not terminable by 3 months’ notice or payment in lieu of notice. Thus, Ground C necessarily fell away, and the discussions below were on the assumption that the EC had been “renewed” or “extended” (which I disagree). 159.I start with the relevant clauses of the EC which expressly provided as follows:
160.In C’s I Subs, C claimed the DPO erred in law in failing to properly investigate the terms of the “renewed” or “extended” EC and to hold such “renewed” or “extended” EC was a fixed term contract not terminable by notice or payment in lieu thereof. It was said the 13/1/09 Email (which was fresh evidence not adduced before the DPO) clearly showed that had the DPO done proper investigation, the result of such further investigation would have made a difference to the outcome. It was further said that by such email D’s then COO Lim confirmed to C that for the “renewed” or “extended” EC (a) the provision for incorporation of the COS (clause 12 of the EC) and the provision for early termination by notice or payment in lieu of notice (clause 4 of the EC) did not apply to C, and (b) C’s conditions of service were those set out in such email that excluded the COS and included termination of C’s management position with D only upon “mutual agreement” (ie the EC had been “revised” or “varied”). 161.In relation to the DPO’s alleged failure to investigate, Mr Ng submitted the DPO failed to properly investigate the following evidence which showed (as C claimed) management pilots such as C were not subject to termination by notice or payment in lieu of notice:
162.C’s II Subs went on to submit the DPO’s failure to properly investigate whether the “renewed” or “extended” EC could be terminated by 3 months’ notice or payment in lieu thereof was compounded by her failure to investigate the following matters which clearly showed the EC had been “revised” or “varied” so that it was not terminable by 3 months’ notice or payment in lieu thereof (and for convenience I also set out my views below):
163.C claimed the DPO’s aforesaid failures to properly investigate the issue of whether the “revised” and “renewed” EC could be terminated by 3 months’ notice or payment in lieu of notice resulted in injustice in that a fair and proper determination of the claim could not be attained. 164.To put it simply, C put forward Ground C to challenge the DPO’s 3 Months’ Termination Notice Finding (ie even if the EC had been “renewed” or “extended” (which D denied and which the DPO rejected by the No Agreement, the Framework Non-Compliance and the No Authority Findings), the “renewed” or “extended” EC would have contained similar terms and conditions to the EC (eg clause 4 thereof), so D could still have terminated the “renewed” or “extended” EC by payment of 3 months’ salary in lieu of notice, and the result would have been the same as the DPO Judgment).[278] But for the reasons set out in paragraphs 161-162 above, C’s submissions dated 20 October 2018, the Becky Li Email, D’s Payment Letter and the Contract Renewal Documents could not help C to establish that the EC had been “revised” or “varied” by removal of clause 4 thereof in order to overcome the 3 Months’ Termination Notice Finding. 165.I agree with Mr Chain that C’s submissions sought to bolster Ground C by essentially (a) using the 2 Emails (which were fresh evidence) to seek rectification of the EC for common/unilateral mistake as justification for ridding the EC of clause 4 that provided for early termination by notice or payment in lieu of notice (see paragraph 160 above) and to substitute a new provision for “termination by mutual agreement only” (see in paragraphs 160 and 161(c) above), ie the “revised” or “varied” EC, and (b) then asserting a “renewed” or “extended” employment contract up to 3 March 2016 (under Grounds A and B) “with the same remuneration, benefit, terms and conditions of service” which by reason of (a) above would be without clause 4 of the EC but would have a provision for termination by mutual agreement only, ie the “renewed” or “extended” EC. It was essentially on such basis that C contended the DPO’s aforesaid failures to investigate gave rise to injustice in that a fair and proper determination of C’s claim could not be attained (see paragraphs 161-163 above). 166.Mr Chain complained this entirely new and non-pleaded point of “perpetual contract” terminable only upon “mutual agreement” was taken for the first time on appeal by using the entirely new evidence of the 13/1/09 Email that was not put before the DPO. Mr Ng submitted the “renewed” or “extended” EC was not a “perpetual contract” but a fixed term contract expiring on 3 March 2016 that was terminable by mutual agreement only. Be that as it may, I am of the view that the crux of the matter was whether upon alleged “renewal” or “extension” of the EC, it was terminable by notice (or payment in lieu of notice) or terminable by mutual agreement only. In the latter case, unless the C would agree and apparently he did not, the alleged “renewed”/“extended” and “revised”/“varied” EC would have continued “perpetually” in the sense of without early termination until its natural expiry on 3 March 2016. 167.More importantly, C’s present stance under Ground C flied against his pre-existing case. As seen in Part VIII above, C’s case before the DPO was that the EC had been renewed to 3 March 2016 on the basis of the Contract Renewal Documents, which asserted the EC was renewed up to 3 March 2016 “with the same remuneration, benefit, terms and condition of service” (see 28/8/10 2nd Email and 8/11/10 Letter in paragraph 110(c)-(d) above). Mr Chain drew my attention to C’s evidence on this subject in the Transcript:[279]
From the above, it was plain that C understood D’s contention was that if the EC been “renewed” and “extended” to 3 March 2016, it would have had the same terms as the EC, which would have included clause 4 of the EC that permitted D to terminate C’s employment by giving 3 months’ notice or payment in lieu thereof. At first, C suggested he had not signed the new employment contract but when he would do so he could have asked for removal of any provision like clause 4 (if any) in the new contract. It was then pointed out to him that he actually never signed any new written employment contract, but on the assumption there was effective renewal of the EC with extension of his employment to 3 March 2016, C by his testimony accepted clause 4 of the EC was in the “renewed” or “extended” contract, but claimed that either C or D could give 3 months’ notice to terminate the employment relationship only in the situation of “[on] the commencement of the applicable conversion course” as expressly provided in clause 4 of the EC. In other words, C’s evidence/case before the DPO was that if the EC was “renewed” or “extended”, clause 4 of the EC was still applicable (which was consistent with the 28/8/10 2nd Email and the 8/11/10 Letter being 2 of the 4 Contract Renewal Documents that C relied on) and the only question was whether there was “commencement of the applicable conversion course”. Thus, on the basis of C’s case that the “renewed” or “extended” EC was on “the same remuneration, benefit, terms and condition of service” as the EC, the DPO made the 3 Months’ Termination Notice Finding. In my view, Ground C did not sit well with C’s own evidence. 168.I therefore agree with Mr Chain that C’s contention for Ground C in the present appeal (ie the EC was not only “renewed” or “extended” to 3 March 2016 but it was also “revised” or “varied” in that clause 4 of the EC was not applicable) was plainly a new point taken on appeal that was focally dependent on the introduction of fresh evidence (ie the 2 Emails the authenticity of which D disputed). To get Ground C off ground and to sustain his contention that the EC was “revised” or “varied” by way of rectification to remove clause 4 allegedly as a result of alleged mistake so that upon “renewal” or “extension” of the EC “with the same remuneration, benefit, terms and condition of service” there would be no clause 4 (as explained in paragraph 165 above), C inevitably had to pray in aid the 13/1/09 Email that appeared to suggest D’s then COO Lim confirmed that so long as C was a manager or management pilot (a) clause 12 of the EC regarding incorporation of the 2008 COS and subsequent versions of the COS as part of the EC did not apply to him, (b) the 2009 COS (which would supersede the 2008 COS) and subsequent versions of the COS were not binding on him and he need not sign acknowledgement for the same, (c) clause 4 of the EC was inapplicable to him and his conditions of service were as set out in the 13/1/09 Email, ie there would be a new “termination of Management Position” clause such that C’s employment contract was terminable only “upon mutual agreement”, and (d) it was intended to substitute a 5-year employment contract for C in 2011/2012 in line with discussions for “permanent contract above age 65 for [him] and other pilots in management or training positions” (see paragraph 161(c) above). 169.In my view, the DPO had made proper investigation and finding. C’s criticism that the DPO “failed” to properly investigate is difficult to understand when he necessarily relied on fresh evidence on appeal (ie the 13/1/09 Email) that was not placed before the DPO and not even mentioned in the 1st, 3rd and 4th Grounds. It was also not easy to see how C could say he had the leave of this court under the Leave Decision to pursue Ground C that crucially relied on the 2 Emails. In my view, C’s attempt to use fresh evidence to shift from his own testimony at the Trial and, more importantly, to upset the factual 3 Months’ Termination Notice Finding made by the DPO, was not any failure by the DPO to investigate that might trigger the Sun Min Exception (if such exception to the restriction on receiving new evidence on appeal from the Tribunal were viable, which I have found to be highly doubtful). Rather, in my view, C was belatedly trying to use fresh evidence on appeal to support a new point not taken at the Trial and which did not sit well with his own testimony at trial. 170.In any event, D argued the 13/1/09 Email was irrelevant as (a) the sender of such email (ie D’s then COO Lim) had no authority to re-write the EC (ie the No Authority Finding), (b) proper procedures were not followed through as there was no requisite approval for renewal of C’s EC (ie the Framework Non-Compliance Finding), and (c) post-contractual conduct was not admissible to interpret the EC. 171.Mr Ng disagreed with (a) above, and submitted that D’s then COO did not “re-write” the EC by the 13/1/09 Email as he was just “explaining what the parties appeared to have actually agreed that the EC should say”. I disagree. There could be no doubt that clause 4 was an express contractual provision of the written EC that C and D signed on 4 March 2008, and unless there were vitiating factors clause 4 was binding on both C and D.[280] To make out Ground C, C had to rely on vitiating factor(s) to denude clause 4 of the EC of its binding legal effect, so C claimed the EC was “varied” or “revised”. In suggesting that D’s then COO Lim was just “explaining what the parties appeared to have actually agreed that the EC should say”, C was plainly relying the alleged vitiating factor of alleged common/mutual mistake or C’s alleged unilateral mistake allegedly known to D to remove clause 4 of the EC and replace it with a provision for termination by mutual agreement only. In my view, whether this was described as “revise”, “vary” or “re-write”, the purpose and effect was to rid the EC of clause 4 on termination by notice or payment in lieu of notice. For reasons explained above, it was impermissible for C to raise such matter on appeal. In any event, I have upheld the No Authority Finding. 172.In respect of (b) above, I have rejected Grounds A and B and found the DPO’s No Agreement, Framework Non-Compliance and No Authority Findings unassailable on point of law. 173.As to (c) above, Mr Ng suggested Mr Chain’s contention was misconceived because there was no post-contractual conduct as alleged or at all because D’s then COO Lim was “explaining what the parties appeared to have actually agreed that the EC should say”. I disagree, and repeat what I have said in paragraph 171 above. Once it was understood that clause 4 of the written EC signed by both C and D was contractually binding unless C was able to satisfy the court of any vitiating factor (eg common/unilateral mistake) or variation, the contents of the 13/1/09 Email being a communication after the EC was made was plainly post-contractual conduct. 174.In this respect, Mr Chain drew assistance from Yuen Ching Yuen v Union Insurance Society of Hong Kong Ltd in which P Cheung J (as he then was) said as follows:[281]
175.As alluded to above, D did not accept the authenticity of the 2 Emails, and claimed there was no justification to allow C to belatedly adduce new evidence on appeal, which was unfair and prejudicial to D who had no opportunity to respond to and/or cross-examine on such new evidence. I have rejected Grounds A and B, including C’s complaint that the DPO failed to investigate or properly investigate the matter of common/unilateral mistake over clause 12 of the EC (and hence applicability of the 2008 COS and/or the 2009 COS) (see paragraphs 94-107 above). My discussions/conclusions in declining to admit the 2 Emails as fresh evidence to support a new point of rectification for common/unilateral mistake (particularly paragraphs 104-107 above) on appeal for Ground A apply mutatis mutandis here. For all the above reasons, I reject C’s application for the adducing the 2 Emails for the appeal and also decline to remit to the Tribunal for further investigation/ finding. In the absence of the 2 Emails which were crucial to C’s attempt to rectify the EC by removing clause 4 of the EC, Ground C fell away. Consequently, and in my view, the DPO’s No Agreement, Framework Non-Compliance, No Authority and 3 Months’ Termination Notice Findings were unassailable on point of law, and the EC had not been (a) “varied” or “revised” (ie clauses 3, 4 and/or 12 of the EC were applicable and binding) and/or (b) “renewed” or “extended” until 3 March 2016 as C alleged. 176.Finally, C’s I Subs raised a further point that the DPO failed to properly investigate the issue of what “applicable conversion course” in clause 4 of the EC meant and whether C as MTP was subject to any “applicable conversion course” (as the evidence in this respect was unclear), and had the DPO properly investigated this matter she would have found from the 13/1/09 Email there was no “applicable conversion course” applicable to C as he had been authorised and endorsed by the Hong Kong Civil Aviation Department as an instructor. At the NOM Hearing, Mr Ng was less robust in that he submitted there was ambiguity as to whether clause 4 of EC was operative, but this court could not conclude clause 4 of the EC was applicable to C when the DPO Reasons did not discuss, analyse or make finding on what “applicable conversion course” meant. Whilst Nr Ng accepted pages 122-124 of the Transcript[283] recorded the DPO did ask C what “applicable conversion clause” meant, he complained there was no analysis or finding as to what that meant in the DPO Reasons. 177.Mr Chain disagreed, and submitted this issue was answered by the parties’ pleadings. D’s supplemental statement dated 20 September 2017 stated as follows:[284]
C’s reply dated 29 January 2018 to D’s 3rd supplemental statement dated 23 January 2018 pleaded that:[285]
Thus, there was common consensus between the parties that C completed the type conversion course on 15 November 2008, which corresponded to the certificate issued by D and signed by D’s then GMT Stewart and D’s then COO Lim that “…… certify [C] has successfully completed the B737-800 Transition Training Course at Hainan Airlines Flight Training Centre, Sanya 15 November 2008”,[286] which date was commonly pleaded by both parties. 178.This was also borne out by the Transcript that Mr Ng referred to:[287]
It was plain from the above that C’s understanding of clause 4 of the EC was that the ability of the parties to terminate the EC by notice was at “the commencement of the applicable conversion course”, but such right was lost after completion of such course. C went on to say D had no right to terminate his EC by notice because “…… this is already after the conversion course”. It was also C’s testimony that the applicable conversion clause referred to in clause 4 of the EC had been completed. 179.Given such common consensus, there was nothing for the DPO to investigate or to discuss/analyse, and there was no need for her to come to any express finding. As C completed the “applicable conversion course” by 15 November 2008, clause 4 of the EC was plainly operative under the EC (that had not been renewed), and either C or D could have terminated C’s employment by giving 3 months’ notice or payment in lieu of 3 months’ notice. In my view, C’s complaint in paragraph 176 above was a non-point. Certainly it formed no basis for C to belatedly attempt on appeal to introduce the 13/1/09 Email to contradict his own plea/ admission that the transition training course on 15 November 2008 was a “type conversion converse”.[288] This also raised question as to the provenance and credibility of the 2 Emails, which were introduced so late in the day that it would prejudice D who by reason of C’s plea and admission did not have to cross-examine C in detail on the subject or to advance further countervailing evidence at Trial. 180.In my view, C’s challenge against the 3 Months’ Termination Notice Finding was without merit, and I reject Ground C. Since the 3 Months’ Termination Notice Finding was unassailable on point of law, this amounted to a standalone basis to uphold the DPO Judgment, and C’s appeal must be dismissed since the outcome/result would have been the same even if C somehow were able to establish the EC was renewed. Further, Ground C was essentially reliant on the introduction of fresh evidence (ie the 2 Emails), and for reasons given above, I refuse leave for C to rely on the 2 Emails for the appeal. X. GROUND D 181.Under Ground D, C claimed the DPO failed to properly investigate his repeated claims that D as employer had the contractual obligation to act in good faith.[289] Mr Ng claimed this ground was covered in inter alia paragraphs F, Q and T and paragraph (ix) of the prayer of reliefs in the 3rd Grounds,[290] but these passages from the 3rd Grounds seemed to focus more on D’s alleged breach of the implied term of trust and confidence. 182.Whilst Mr Chain frankly accepted C’s pleadings/statements and the 1st, 3rd and 4th Grounds were sporadically littered with what he described as the “buzzwords” of “good faith”, “trust” and “confidence” in a rambling manner, he complained that Ground D did not feature in C’s I Subs and given the rationale/purpose for C’s I/II Subs as explained in paragraph 13 above C was not entitled to pursue Ground D at the NOM Hearing. 183.Mr Ng pointed to paragraph 8 of C’s I Subs that concerned C’s complaints that DPO failed to properly investigate, address or deal with or sufficiently investigate, address or deal with C’s claim of discrimination, victimisation, abuse of process, malice or gross negligence against C that underlined D’s conduct to terminate C’s employment, and suggested Ground D “is subsumed under the ground in paragraph 8 [of C’s I Subs]”. In short, Mr Ng asked this court to read Ground D (canvassed in paragraphs 34-38 of C’s II Subs) into paragraph 8 of C’s I Subs. But paragraph 8 of C’s I Subs itself formed a separate Perfected Ground, ie Ground E that was canvassed in 39-41 of C’s II Subs. Having carefully considered paragraph 8 of C’s I Subs, I find myself unable to read Ground D in such Perfected Ground (which essentially was Ground E). Thus, Ground D was procedurally barred for lack of inclusion in C’s I Subs. 184.In any event, it made no difference because at the NOM Hearing, Mr Ng conceded Ground D would not avail C unless he was able to establish Grounds A and B. As Mr Chain rightly pointed out, C could not succeed on Ground D by raising issues over whether there had been breach of the duty of good faith, whether C suffered additional damages, and whether C had established the quantum of the claimed damages in vacuo without substantiating his allegation that the DPO’s alleged failure to investigate such issues might actually make a difference. After all, the DPO was not obliged to consider every possible obligation owed by D unless it was properly raised and pursued. In any event, having failed on Grounds A and B, Ground D was necessarily a non-starter, and there was no need for me to consider Ground D substantively. But for the sake of completeness, I shall do so briefly. 185.Under Ground D, C claimed the DPO failed to properly investigate his repeated claims that D as employer had the contractual obligation to act in good faith (see footnote 289 above), and such failure was compounded by the DPO’s failure to entertain C’s submissions in his letter dated 5 November 2018[291] (which was submitted after the Trial) which drew her attention to inter alia the Court of Appeal decision in Tadjudin Sunny v Bank of America, National Association.[292] Mr Ng submitted that bearing in mind section 20(1) of the LTO provides that the hearing of a claim in the Tribunal shall be conducted in an informal manner, the DPO ought to have made further investigations, particularly on the question of how the principles propounded in Tadjudin Sunny would impact on C’s claim. As the DPO did not further investigate, she did not deal with C’s claim based on breach of the contractual obligation of good faith and/or implied term of trust and confidence, and consequently made no determination as to (a) whether there had been any breach of such contractual obligation/term in the EC, (b) whether C suffered any additional damages which was not too remote as a result of breach, if any, and (c) whether the quantum of damages claimed by C was established.[293] It was said the DPO’s conclusion that C’s post-Trial additional submissions added nothing to C’s case[294] was arrived at without proper consideration of Tadjudin Sunny, and was insupportable. 186.In fairness to the DPO, she did not merely brush aside C’s post-Trial submissions even though she considered slipping in submissions after the Trial to be quite inappropriate. In fact, she did consider C’s submissions as well as D’s supplemental submissions in reply dated 7 November 2018,[295] and found that the former did not add further to C’s case for the reasons set out in the latter (see paragraph 31 above). I do not agree the DPO failed to properly consider and/or investigate these matters raised by C. Rather, it was C who belatedly raised such matters at the post-Trial stage, which was unfair to D who could have cross-examined C (or even adduced countervailing evidence if any) on those matters at the Trial had they been timely and properly raised. I do not see how the DPO could be faulted in dealing with these new points in the way she did. 187.But as Mr Chain submitted, the substantive answer to Ground D was a legal one. Notwithstanding allegations of obligation of good faith (and duty of trust and confidence), such obligation/duty did not exist in vacuo. In the context of an employment contract, the concept of good faith (and trust/confidence) was the express/implied yardstick that would measure the employer’s performance of his contractual duties and obligations prescribed by the terms and conditions of the contract. Thus, one could not (as asserted in Ground D) simply assert there was a duty of good faith or implied trust and confidence without going further to say how D’s performance of its contractual duties/obligations interacted with the duty of good faith (and/or implied trust and confidence). This was clearly borne out in Tadjudin Sunny in which the Court of Appeal said as follows:
Thus, in Tadjudin Sunny, the concept of good faith was used to qualify the unqualified discretion given to the employer to terminate by notice the employee’s employment so that such discretion could only be exercised in good faith, rationally and for a proper purpose, and not arbitrarily or capriciously or in a manner not in good faith. Thus, the court implied an “anti-avoidance” term to prevent the employer from terminating the employee’s employment by notice with a view to avoid the employee being eligible for the employer’s performance incentive programme. 188.In the present case, C did not put forward his alleged ground based on the concept of good faith to interpret any existing contractual obligation or to imply any contractual obligation. Rather, C tried to use the concept of good faith to attack D’s failure to renew his EC (ie alleging that D failed to act in good faith by not renewing the EC).[296] But since I have rejected Grounds A and B, and found the No Agreement, Framework Non-Compliance, No Authority and 3 Months’ Termination Notice Findings to be unassailable on point of law, it was plain there was no contractual duty or obligation on the part of D to renew C’s EC. Indeed, clause 3 of the EC provided that “[the] option of renewal shall however be exercised at [D’s] discretion and notified to [C] in writing before the expiry of this contract”, and clause 2.4.4 of the 2009 COS provided that it was up to D to give notice of renewal 1 month prior to the expiry of the EC (if applicable) and up to the parties to mutually agree on the terms and conditions that would apply to the renewed term to be agreed/signed by them before the expiry of the EC. Further, the DPO made factual finding that the Contract Renewal Documents were nothing more than Lim’s/Stewart’s recommendations which were not considered or formalised in accordance with the procedures prescribed in the contractual framework binding on the parties and/or with the VPN approval system as known to Lim/Stewart and C (see paragraphs 27(i) and 29 above). In the absence of contractual duty/obligation on the part of D to renew the EC, I fail to see how the duty of good faith would arise. This explained why Mr Ng conceded that C had to succeed on Grounds A and B before Ground D could get off ground. But having failed on Grounds A and B, there was no merit to Ground D. 189.Next, although C’s II Subs labelled Ground D as DPO’s failure to investigate “C’s claim that D had the contractual obligation of good faith”, Mr Ng’s submissions meandered to the “implied obligation of mutual trust and confidence between employer and employee”. The Court of Appeal in Tadjudin Sunny said as follows:
190.But, as Mr Chain pointed out, it was important to distinguish between the concept of good faith and the concept of trust and confidence for they were different concepts. I have explained the latter concept as follows in Weng Chi-cheong v Barclays Capital Asia Limited:[298]
191.In Semana Bachicha, Ribeiro JA (as he then was) stated at page 844 that what Malik (see footnote 301 above) “…… stresses is that the remedy in damages for breach of a contract of employment is not restricted to damages for wrongful dismissal. The general measure of damages rules in the law of contract are applicable to other types of breaches giving rise to other types of pecuniary loss ……” In Malik, the employee upon termination by the employer (who had an implied obligation not to carry on a dishonest or corrupt business) recovered “stigma compensation” for reputational loss by showing it was reasonably foreseeable that in consequence of the employer’s corruption there was a serious possibility his future employment prospects would be handicapped.[302] Such principles were applied in Grant David Vincent Williams v Jefferies Hong Kong Limited.[303] There the plaintiff (employee) was summarily dismissed by the defendant (employer) for gross misconduct for one issue of a marketing newsletter collated/edited by the employee that contained some inappropriate reference but was distributed before it had been reviewed/approved. DHCJ Seagroatt held that the circumstances of the employee’s dismissal were unfair, and that there was no justification for such dismissal. The learned judge also held that “[the] way the [employer] handled the matter of the [employee’s] dismissal, the explanatory e‑mail and the excision of the [employee] from all contact with and association with the company was ...... in clear breach of the implied duty of trust and confidence which they owed him”. He awarded the employee contractual loss of earnings and benefits, damages for breach of the implied term of trust and confidence (which essentially was “stigma compensation”), etc.[304] 192.It was clear from the above that that a breach of the duty of mutual trust and confidence is a “purely contractual claim based on breach of an implied term of contract”. But C’s complaint about D’s non-renewal of the EC was not a breach of the terms of the existing EC for there was no contractual duty or obligation to renew the EC (as the DPO found and I upheld upon rejection of Grounds A and B). That being the case, C would not be entitled to further damages that were separate from those flowing from the termination. In any event, C’s claim in the Claim Form as amended was for damages arising from wrongful termination of the renewed employment contract (see paragraph 1 above) rather than any other standalone heads of damage that fell under the auspices of the duty of trust and confidence. In my view, there was no merit to C’s assertions concerning the duty of trust and confidence. 193.At the NOM Hearing, Mr Ng submitted it was a breach of trust and confidence for D not to renew the EC, but renewal of the EC was outside the existing EC for it contemplated entering into another employment agreement upon natural effluxion of the existing EC. But as explained above, the duty of mutual trust and confidence between employer and employee existed within the context of a contract of employment, ie within the existing contractual relationship. It was on such basis that if the employer breached his duty of trust and confidence in some way within the context of the current contractual relationship with the employee, then damages under the general measure might sound. As Mr Chain asked rhetorically, how could one breach an implied duty in relation to performance/discharge of obligations under a contract of employment by not entering into a second/separate renewed contract of employment? In my view this could not have been any breach of duty of trust and confidence in light of the DPO’s No Agreement, Framework Non-Compliance and No Authority Findings which I upheld upon rejection of Grounds A and B, and when clause 3 of the EC expressly provided that the option of contract renewal was to be exercised at D’s discretion, which provision was binding on C. 194.Ground D failed given Mr Ng’s concession that it would upon failure of Grounds A and B, but for all of the above reasons, I also agree with the DPO that substantively the allegations of breach of the obligation of good faith and/or breach of duty of trust and confidence would not take C’s case any further. I reject Ground D. XI. GROUND E 195.In C’s I Subs, C claimed the DPO erred in law in failing to properly investigate, address and deal with or sufficiently investigate, address and deal with C’s other claims of discrimination, victimisation, abuse of process, malice or gross negligence etc against D that underlied D’s conduct to terminate their employment relationship even though C expressly made such claims in his pleadings and submissions filed in the Tribunal,[305] and gave evidence on these claims at the Trial before the DPO.[306] In putting forward such Perfected Ground, Mr Ng turned to my observations in paragraph 24 of the Leave Decision which noted C contended inter alia the DPO failed to investigate, address and deal with or sufficiently investigate, address and deal with his claims of discrimination, victimisation, abuse of process, malice or gross negligence against D that allegedly underlined D’s conduct in terminating their employment relationship. But as explained in paragraph 72 above, the threshold requirement for granting leave to appeal was whether the intended appeal had arguable grounds, and it remained to be seen at the appeal proper whether or not C could establish Ground E to upset the DPO’s factual findings on point of law. 196.In C’s II Subs, Mr Ng submitted that in the circumstances there was thrust upon the DPO the duty to properly investigate C’s contentions of victimisation, discrimination, abuse of process, malice or gross negligence etc in footnote 305(a) and (c) and 306(a)-(b) above, but she failed to do so, brushed aside these matters and simply stated she was not there to adjudicate any matter that related to discrimination as follows,[307] which was particularly troublesome since C’s contentions of victimisation, discrimination, abuse of process, malice or gross negligence etc were directly related to C’s compliant that D was in breach of its contractual obligation to act in good faith and its implied duty of trust and confidence:
197.At the NOM Hearing, Mr Ng spent quite some time to explain to the court the incident canvassed in footnote 305(b), (e), (f) (g) and (h) above that concerned the assault on Stewart by Ooi (referred to in footnote 305(b) above) that resulted in the prosecution, conviction and sentence of Ooi (even though this incident was not canvassed in C’s II Subs for Ground E):
198.D disputed Ground E, and in D’s I Subs suggested C’s unintelligible ranting and raving of discrimination, victimisation, abuse of process, malice, and/or gross negligence etc were all in context of (and added nothing to) his claim for damages for breach of the EC[314]:
199.D’s II Subs went on to say that in respect of C’s claims of victimisation, abuse of process, malice, discrimination etc, essentially his factual complaint was that they culminated in the termination of his employment and non-renewal of his EC, which meant these allegations of victimisation, abuse of process, malice, discrimination etc were part and parcel of (and therefore added nothing further to) his case on the termination/non-renewal of the EC. It was said this was borne out by C’s stance at the Trial:[315]
200.Having carefully considered C’s and D’s respective submissions, I am satisfied that C’s claims of victimisation, abuse of process, malice, discrimination etc were not advanced as separate and standalone causes of action, but were part and parcel of his case on the termination/non-renewal of the EC and/or put forward in support of Ground D, but I have rejected C’s Perfected Grounds in relation to the same (ie Grounds A-D). In any event, even if C did put forward separate and standalone claims for victimisation, abuse of process, malice, discrimination, conspiracy[316] etc, they would not have assisted him because, as Mr Chain submitted, some were not cause of action known to law (eg malice), some had no foundational basis (eg D had not invoked any judicial process to ground any claim for “abuse of process”), some were outside the jurisdiction of the Tribunal (eg (a) a claim in discrimination or victimisation (which should be brought in the District Court),[317] and/or (b) a claim for conspiracy[318]). I am also satisfied that C’s allegations of victimisation, abuse of process, malice, discrimination, gross negligence, conspiracy etc did not cause the losses he sought to claim, ie losses that allegedly stemmed from the termination/non-renewal of the EC rather than any separate and standalone claims for victimisation, abuse of process, malice, discrimination, conspiracy etc. In such context, the DPO had adequately considered the matter, and could not be expected to investigate at great length into these claims that either had no foundational basis or beyond the Tribunal’s jurisdiction. In all the circumstances, I reject Ground E. XII. FURTHER GROUND 201.In C’s I Subs, C claimed the DPO erred in her duty to investigate by going to the extent of cross-examining C as if she were the lawyer for D.[319] This Perfected Ground was not canvassed in C’s II Subs at all. But at the NOM Hearing, Mr Ng maintained such Perfected Ground, and suggested that if this court were to read the Transcript, this court would gain the impression that the DPO was in fact putting questions to cross-examine C, which was different from her attitude when Thong gave evidence. On the other hand, in D’s I Subs, D claimed the DPO’s questioning of C was fully within the realms of proper conduct in the circumstances of the case.[320] 202.The burden was on C to establish the vitality of her grounds of appeal, and it was not for this court to go through the Transcript to find out for itself whether this Perfected Ground was made out. However, since C’s I Subs referred to various extracts from the Transcript, I shall deal with them below:
203.I agree with D there was no merit in this Perfected Ground in paragraph 7 of C’s I Subs, which I therefore reject. XIII. CONCLUSION 204.For all of the above reasons, C’s NOM and/or appeal against the DPO Judgment as well as the Summons are dismissed. 205.There is no reason why costs should not follow event. I therefore grant a costs order nisi that C shall pay D costs of and occasioned by (a) the NOM and/or appeal against the DPO Judgment, (b) the Summons and (c) C’s Aff and the argument on its admissibility, all of which with all costs reserved (if any) to be taxed if not agreed with certificate for two counsel, and C’s own costs be taxed in accordance with Legal Aid Regulations. 206.Mr Chain submitted that given the value of C’s claim exceeded $32,000,000 and further given disproportionately voluminous documents were generated by him, certificate for two counsel was justified. Mr Ng disagreed. In my view, two counsel was justified because of the complexity caused by C with his voluminous 1st, 3rd and 4th Grounds and the metamorphosis of his contentions with a number of new matters raised by way of C’s I Subs, C’s II Subs and Mr Ng’s oral submissions, and I am sure Mr T Ng was of assistance to Mr Chain in coming up with D’s prompt response to those matters, including references to appropriate materials in the Hearing Bundle. I also bear in mind that C’s Aff was a late document filed/served at the brink of the NOM Hearing, which required D to scramble a response to oppose the same.
[1] see para 1 of the DPO Reasons referred to in para 4 below (C-5(1) and D-4(1), and E12/637-642 and F13/817-822) [2] see para 6 of the DPO Reasons (C-10 and D-5(1)-(2), and E17/659 and F3/823-824) [3] see paras 2, 6 and 19 of the DPO Reasons [4] C-1 and A2/163-164 [5] C claimed that but for D’s wrongful termination of his employment he would have bought a condominium in October 2011 and the price of such condominium would have risen [6] C-32(3) and E39/697 (see answer 6 in the statement dated 28 October 2010 by Captain Richard Stewart to the police) [7] the 1st Grounds included complaints that the DPO (a) failed to perform her statutory duty to investigate or to allow C to cross-examine witnesses on D’s malice, conspiracy, victimisation, fraud as well as unjust, unreasonable, wrongful and unlawful actions/omissions in prematurely terminating C’s employment with D, (b) failed to give weight to C’s strong documentary and other evidence, (c) gave weight to obsolete/voided/unsigned documents, (d) accepted witnesses’ lies, (e) failed to recognise C as expert witness on flight operation matters despite his experience, and (f) failed to allow C’s claims in full [8] see Memorandum on Notification of an Application for Legal Aid filed on 24 December 2018 [9] see Memorandum of Notification that a Party has been Refused Legal Aid filed on 6 March 2019 [10] see Memorandum on Notification of an Application for Legal Aid filed on 30 December 2019 [11] see Notice of Issue of Legal Aid Certificate and Legal Aid Certificate filed on 6 May 2020 [12] see Notice of Assignment of Counsel filed on 6 May 2020 [13] eg para 5 of C’s I Subs claimed the DPO erred in law in failing to properly investigate whether the emails/letters dated 27-28 August 2010 and the letter dated 8 November 2010 (referred to in para 2 of C’s I Subs and as “Contract Renewal Documents” in footnote 17 below) constituted an estoppel whereby D was estopped from denying the EC had been renewed for a fixed term of 5 years from the expiry thereof, but C’s I Subs did not (a) cross-reference to the primary source of such Perfected Ground in the 1st, 3rd and/or 4th Grounds or (b) identify the relevant pages of the agreed indices of the Hearing Bundle as to the pleadings, documents, transcripts, judgment and/or other evidence before the Tribunal that pertained to this Perfected Ground [14] D-22(1)-(43) and F13/938-980 [15] which had since been amended on 12 July, 9 August, 3 October and 16 October 2017, but C’s claim still prayed for damages in excess of $32,000,000 [16] see C’s supplemental statement dated 11 August 2011 (C-2(1)-(23) and B2/207-219) [17] email dated 27 August 2010 by Lim to C (C-24 and E31/681, “27/8/10 Email”), letter dated 28 August 2010 by Lim to C (C-63(15) and B21/451, “28/8/10 Letter”), email dated 28 August 2010 14:15:17 by Lim to C (C-25 and E32/682, “28/8/10 2nd Email”), and letter dated 8 November 2010 by Stewart to C (C-31 and E38/693, “8/11/10 Letter”) (collectively, “Contract Renewal Documents”) (see paras 6 and 32 of the DPO Reasons and para 110 below) [18] email dated 28 March 2011 by D’s Human Resource Officer Charlotte Au to C as referred to in para 22 of C’s supplemental statement dated 11 August 2011 (C-2(6) and B2/212) [19] D-16(1)-(15) and F10/842-857 [20] see paras 33-37 of C’s closing submissions dated 22 October 2018 (C-94(17) and D3/572-574) [21] both C and D agreed the 3-year period of the EC should run from the date when C was released to LFUS (line flying under supervision), ie November 2009, so the EC should have naturally expired in November 2012 (see para 27 of the DPO Reasons) [22] see para 27 of the DPO Reasons [23] see para 26 of the DPO Reasons [24] ie the 2009 COS (see also the 2011 version of the COS (D-21(1)-(39) and F12/899-937, “2011 COS”) and the 2014 version of the COS (D-20(1)-(41) and F11/858-898, “2014 COS”)) (see para 20 of the DPO Reasons) [25] see paras 18 and 20-22 of the DPO Reasons [26] see statement of Lai Suk Fan Sarah (senior manager of D’s Human Resources Department) dated 6 October 2011 (D-10(1)-(2) and C2/526-528) (see paras 23-24 of the DPO Reasons) [27] see para 25 of the DPO Reasons [28] see email dated 28 August 2010 from Lim to Stewart (ie the 28/8/10 2nd Email) stating that “[at] a later date, kindly advise HR [human resources] accordingly for the renewal of [C’s] contract for a 5 years period with the same remuneration, benefit, terms and conditions of service from 04 March 2011 to 03 March 2016” (my emphasis) (C-25 and E32/682) (see para 28 of the DPO Reasons and footnote 17 above) [29] see para 28 of the DPO Reasons [30] see paras 30(1) and 34 of the DPO Reasons [31] see para 31 of the DPO Reasons [32] see para 33 of the DPO Reasons [33] see para 32 of the DPO Reasons [34] see para 33 of the DPO Reasons [35] see para 36 of the DPO Reasons [36] C-5(4), F2/820 and E12/640, and see para 35(c) of the DPO Reasons [37] the DPO regarded this situation as akin to a bank loan agreement referring to the bank’s terms and conditions and any subsequent versions thereof that governed, say, the prevailing interest rates, which incorporation was found to be valid (especially where the subsequent versions of the terms and conditions were readily accessible and not concealed from the other party) in DBS Bank (Hong Kong) Ltd v Chan Chesta & anor HCMP281/2017, DHCJ Le Pichon (unreported, 9 May 2018) paras 18-26 (see para 39 of the DPO Reasons) [38] see paras 55-58 of the DPO Reasons (citing Ming Shiu Chung & ors v Ming Shiu Sum & ors (2006) 9 HKCFAR 334, 361 and Bank of China (Hong Kong) Ltd v Fung Chin Kan & anor (2002) 5 HKCFAR 515, 533) [39] see paras 35(c) and 38 of the DPO Reasons [40] in light of clause 12 of the EC, the DPO rejected C’s contention that the 2008 COS and its subsequent versions would not apply to him on the basis (as C alleged) that (a) the 2008 COS became obsolete upon issuance of the 2009 COS (or any subsequent version) and (b) he refused to sign and acknowledge those subsequent versions (see paras 59-60 of the DPO Reasons) [41] see paras 61-62 of the DPO Reasons [42] it was undisputed the EC lasted until at least 3 March 2011, ie it was not contended by either party the EC had come to an end because C somehow would not agree to the COS (see para 40 of the DPO Reasons) [43] see para 40 of the DPO Reasons [44] see para 42 of the DPO Reasons (but on 3 June 2011 D made final payment to C and by the Payment Letter of the same date D emphasised C’s last working / employment day was on 3 March 2011 – see para 1 above and para 41 of the DPO Reasons) [45] C-5(2) and E12/638, and see para 35(a) of the DPO Reasons [46] D-22(6) and F13/943 [47] see para 42 of the DPO Reasons [48] clause 12 of the EC provided inter alia that “…… [I]n the event of discrepancy between these rules, regulations, rights, benefits and protection and the terms and conditions stipulated in this letter, the latter shall prevail” (see para 43 of the DPO Reasons) [49] see clause 1(f) of the 2008 COS (D-16(6) and F10/845) [50] the DPO held that on a fair and objective interpretation of clause 3 of the EC (which provided that a notice of renewal would be given by the employer in writing one month prior to the expiration of the employment contract and the pre-requisite for such notice to be given was “mutually agreed terms and conditions”) and clause 2.2.4 of the 2009 COS (which provided that such mutually agreed terms and conditions applicable to the renewed term had to be signed (on a binding and final basis) documentation on or before the expiry date of the employment contract), there was no discrepancy and one had to look at both provisions in interpreting the contractual rights and obligations of the parties (see paras 42 and 44 of the DPO Reasons) [51] see paras 44-45 of the DPO Reasons [52] see paras 46 and 51 of the DPO Reasons [53] the DPO held it was clear the makers of the Contract Renewal Documents were well aware of the necessary procedures for renewal of employment contract and it would be for D (ie its Human Resources Department) to handle the matter of contract renewal upon recommendations made by the makers of the Contract Renewal Documents in accordance with the terms as agreed, and there was no justification for departure from those agreed terms between the parties (see paras 47-51 of the DPO Reasons) [54] the DPO held that (a) according to the 2009 COS D would have given notice to the employee regarding contract renewal “one month prior to the Expiry Date”, (b) in C’s case the expiry date would have been November 2012, which was 3 years counting from the date C was released to LFUS (line flying under supervision) (which the parties agreed was November 2009), so (c) the question of contract renewal had not properly arisen at the time when the Contract Renewal Documents were issued in 2010 (ie there was nothing to renew in 2010), and (d) it did not make sense for the senders of the Contract Renewal Documents to intend to bind the relevant individuals who would be tasked with the renewal process as and when the time came in 2012, especially when those senders had all left D’s employment in 2012, hence (e) C’s suggestion otherwise (ie the EC had been renewed pursuant to the Agreement and/or the Contract Renewal Documents) was an absurdity as D would be barred from refusing to renew the EC regardless of anything that took place between 2010 and 2012, which the DPO considered could not be right (see paras 36, 46 and 52(a)-(b) and (d)-(e) of the DPO Reasons) [55] see para 52(a)-(b) of the DPO Reasons [56] see para 52(c) of the DPO Reasons [57] see para 53 of the DPO Reasons [58] see clause 2.3.6 of the 2009 COS (D-22(8) and F13/945) and para 54 of the DPO Reasons [59] D-14(9) and B18/372 [60] see para 54 of the DPO Reasons [61] should be President Yang Jian Hong (C-46(1) and E49/721) [62] see paras 63 and 68 of the DPO Reasons [63] D disclosed the VPN approval form (D-14(8) and B18/371) showing that on 29 December 2010 Chow raised a motion to seek approval from Vice-President Sun on the “non-renewal of contract for [C] which is due in March 2011”, that Sun agreed with such motion, and that Mr Stanley Kan, general manager of D’s Human Resources Department (C-90 and E81/779), followed up on the matter; and C confirmed during the Trial he would not challenge the authenticity of such document (see paras 64-66 of the DPO Reasons) [64] the DPO held there must have been an approval procedure in recruiting pilot or renewing pilot employment contract as (a) Goh and Thong gave evidence that confirmed the existence of the VPN approval system, and (b) C’s email dated 16 August 2010 to Thong (C-36(3)(a)-(b) and E43/707-708) also mentioned that for recruiting of pilot “recommendation to the President may be done through [Thong]” (see paras 66-67 of the DPO Reasons) [65] C alleged Sun stated in such email that “everything have to follow the original contract and current company policy”, which “current company policy” was contained in an email dated 12 December 2008 from Lim to C (copied to another captain) (C-92(18) and E83/799) that stated “[we] are going to have continuous contracts to remove this contract renewal policy which we will act in good faith …… The guaranteed contract renewal policy would enable first officers to become captain. Company policy in OMA Upper Age Limit for Pilots of 65 will guarantee contract renewal to age 65” (see para 69 of the DPO Reasons) [66] see clause 2.3.6 of the 2011 COS at D-21(7) and F12/905, and the DPO held it was in any event trite that any construction and interpretation of contractual terms would be an objective exercise such that the subjective intention of any party would be inadmissible and irrelevant (see para 70 of the DPO Reasons) [67] see para 71 of the DPO Reasons [68] see para 72 of the DPO Reasons [69] see para 73 of the DPO Reasons [70] see para 30(2) of the DPO Reasons [71] see para 74 of the DPO Reasons [72] see para 75 of the DPO Reasons [73] ie an appeal against a determination by the Tribunal is on point of law, but leave to appeal will be granted if the determination was made without regard to relevant factors, was made without evidence, or there was 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 para 9 of the Leave Decision) [74] HCLA40/1983, Hunter J (as he then was) (unreported, 19 March 1984) [75] see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, 368-369 – not cited by Mr Ng or Mr Chain [76] see Secretary for Justice v Timothy Wynn Owen KC & anor FAMV591/2022 (unreported, 28 November 2022) – handed down after the NOM Hearing [77] FAMV591/2022 (unreported, 28 November 2022) [78] at para 38 [79] [2015] HKEC 1139; HCMP977/2015 (unreported, 17 June 2015) para 10 [80] such doctrine has even been applied to criminal cases (footnote 32) [81] see A Workshop Communications Ltd v Tam Heung Man HCSA46/2017 (unreported, 12 February 2018) para 52 [82] [2004] 2 HKC 1 [83] [2005] 1 HKC 381 [84] CACV37/2004 (unreported, 17 October 2005) [85] [2006] 1 HKLRD 76 [86] CACV20/2011 (unreported, 19 September 2014) paras 30-32 [87] [2006] 1 HKLRD 871 – not cited by Mr Ng or Mr Chain [88] HCLA9/2013 (unreported, 11 July 2014) – not cited by Mr Ng or Mr Chain [89] HCLA36/2015 (unreported, 1 December 2016) [90] HCLA13/2016 (unreported, 9 February 2017) – not cited by Mr Ng or Mr Chain [91] HCSA46/2017 (unreported, 12 February 2018) [92] see Chen Henry & ors v William E Connor & Associates Limited HCLA51/2006, DHCJ To (as he then was) (unreported, 14 May 2007) para 18 and Vermeerbergen Peter Alfred at paras 11-16 [93] see Vermeerbergen Peter Alfred at para 16 and A Workshop Communications Ltd at para 24 [94] HCSA55/2017 (unreported, 8 February 2018) para 16 [95] see Chan Suk Bing Angie v Harbour Phoenix Ltd & anor [1992] 2 HKC 459, 462-463, Leung Wan Kee Shipyard Ltd v Lik Shau Foo & ors [1995] 3 HKC 229, 233-234 and Liu Kam Cheong v Tin Wo Engineering Co Ltd [2007] 3 HKLRD 784, 787-789 [96] see Siu Koon Fung & 194 others v Shun Shing Construction & Engineering Company Ltd HCLA1/2002 and HCLA24/2002, Lam J (as he then was) (unreported, 5 July 2002) para 23 (see also Chan Chi Ling Elwyn at para 91 and Fung Tsun Tong at para 51) [97] see A Workshop Communications Ltd at paras 48-52 [98] see Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Ltd trading as Sheraton Hong Kong Hotel & Towers HCLA34/2004, Lam J (as he then was) (unreported, 4 June 2004) paras 10-11 and 15, and Monti Mary Pais v Shilesh Ramesh Kuwadekar HCLA65/2004, Lam J (as he then was) (unreported, 28 January 2005) para 14 [99] see Treasure Coast Limited v Nio Soang Tek HCLA95/2000, DHCJ To (as he then was) (unreported, 5 November 2001) para 10 [100] see also Ramsden, March and Aslam, Hong Kong Employment Ordinances: Commentary and Annotations (Collected Volume) para [LTO35.03] at p 886 [101] see Ladd v Marshall [1954] 1 WLR 1489 [102] [2013] 3 HKLRD 490 [103] (2018) 21 HKCFAR 118 [104] [2010] 1 HKLRD 286 with English translation at [2010] 1 HKLRD 294 [105] see para 1 of C’s I Subs and paras 8-20 of C’s II Subs as cross-referenced to para 4 of D’s I Subs and paras 20-24 of D’s II Subs [106] see para 74 of the DPO Reasons and para 33 above [107] see paras 7(c), 8(b)(i)-(iv) and 14-19 of D’s II Subs [108] HCLA17/2019, B Chu J (unreported, 3 November 2020) para 7 [109] HCLA95/2000, DHCJ To (as he then was) (unreported, 5 November 2001) para 10 [110] see paras 9 and 23 of the Leave Decision [111] see para 9 of the Leave Decision [112] see paras 52, 54, and 63-68 of the DPO Reasons, and paras 27(g) and (i) and 28-30 above [113] see paras 7(b), 8(i)-(iii) and 9-13 of D’s II Subs [114] A2/32-33 and A2/40 [115] see para 8 of C’s reply dated 2 October 2017 to D’s supplemental statement dated 20 September 2017 (C-59(8)-(10) and B15/341-343), pp 14 and 21-22 of C’s reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017 (C-62(14) and C-62(21-22), and B19/390 and 397-398), and paras 12, 21, 24, 25 and 46 of C’s submissions dated 22 October 2018 (C-94(6), (11)-(13) and (21), and D3/562, 567-569 and 577) [116] see p 23A-B-C and K-M of the transcript of the trial before the DPO (“Transcript”) [117] see para 36 of the DPO Reasons and para 27 above [118] see paras 46-53 and 69-71 of the DPO Reasons and paras 27(a) and (g)-(j) and 30 above [119] see paras 38-45 and 55-62 of the DPO Reasons and para 27(a)-(g) above [120] see paras 18-22, 37-40, 55 and 59-62 of the DPO Reasons and paras 25 and 27(a)-(e) above [121] Mr Ng submitted that D’s reliance on the 2008 COS was misconceived because the DPO made no finding that the 2008 COS formed part of the EC, and in any event the COS was for non-management pilots and were inapplicable to C (see footnote 6(3) of C’s II Subs) [122] Mr Ng submitted that clause 3 of the EC was of no assistance to D because the EC had been varied and extended, and the DPO failed to properly investigate the issue of whether the EC had been varied and renewed to 3 March 2016 resulted in injustice in that a fair and proper determination of C’s claim could not be attained (ie Ground B) (see footnote 6(4) of C’s II Subs) [123] D-15(2) and B20/434 [124] para 4 of D’s 3rd supplemental statement dated 23 January 2018 (D-15(2) and B20/434) explained that “condition (e)” of the EC dated 4 March 2008 provided that “all CAD required examinations completed and CAD ATPL application kept in abeyance on management request for operational reasons, B737 endorsement on the HK CAD ATPL upon completion of training assignment” [125] clause 1 of the EC provided inter alia that “The position offered for employment by [D] is as a Manager, Training Projects ……” (see C-5(1) and E12/637) [126] D-22(6) and F13/943 [127] D-22(42) and F13/979 [128] see para 5(b) of D’s 3rd supplemental statement dated 23 January 2018 that stated “[C] had no entitlement to training” in para 78 above [129] D-22(41) and F13/978 [130] C-5(3) and E12/639 [131] D-22(6) and F13/943 [132] D-22(18) and F13/955 [133] C-7(1)-8) and E14/645-652 [134] HKE’s President Yang was also D’s President (see C-46(1) and E49/721) [135] C-6 and E13/644 [136] C-46(3) and E49/723 [137] General Manager, Human Resources & Administration, HKE and D (C-90 and E81/779) [138] Senior Manager of D’s Human Resources Department [139] Senior Human Resources Officer, HKE and D (D-14(9) and B18/372) [140] D-14(9) and B18/372 [141] see Wong Tak Yue v Kung Kwok Wai David (No 2) (1997-98) 1 HKCFAR 55, 69 that concerned a claim for adverse possession of land, and Li CJ said: “Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight” [142] see pp 22U – 24D of the Transcript (G/22-24) [143] see p 23A-B of the Transcript (G/23) [144] ie last page of the EC (C-5(6) and E12/642) [145] see p 23B-C of the Transcript (G/23) [146] see p 23K of the Transcript (G/23) [147] see p 23L-M of the Transcript (G/23) [148] C-59(8)-(10) and B15/341-343 [149] C-62(14) and (22), and B19/390 and 398 [150] C-62(21) and B19/397 [151] C94(11-13) and D3/567-569 [152] see Chan Suk Bing Angie at p 463 [153] see paras 35 and 38 of the DPO Reasons and para 27(c) above [154] see para 39 of the DPO Reasons and para 27(a) above [155] see footnote 6(3) of C’s II Subs and para 76 above [156] see para 39 of the DPO Reasons and para 27(a) above [157] see para 62 of the DPO Reasons and para 27(d) above [158] see paras 38-39 of the DPO Reasons and para 27(a) above [159] see D16-2 and F10/857, and para 55 of the DPO Reasons and para 27(b) above [160] see paras 61-62 of the DPO Reasons and para 27(d) above [161] at pp 50R-52L (G/50-52) [162] see Chitty on Contracts 34th ed Vol I para 15-005 at p 1107 (note that the DPO was well aware of this principle for she cited the authorities in footnote 38 above – see also paras 56-57 of the DPO Reasons) [163] see Chitty on Contracts 34th ed Vol I para 15-016 at p 1114 [164] see para 39 of the DPO Reasons and para 27(a) above [165] see para 40 of the DPO Reasons and para 27(e) above [166] see O’Brien v MGN Ltd [2002] CLC 33, 38 – not cited by Mr Ng or Mr Chain [167] HCMP281/2017, DHCJ Le Pichon (unreported, 9 May 2018) at paras 18-26 (see para 39 of the DPO Reasons and para 27(a) above) [168] in that case, clause 11.4 of the “Terms and Conditions Governing Banking Facilities and Services” attached to the 1st facility letter formed an integral part of the 1st facility letter and also the subsequent facility letters and provided inter alia that if any amount under such facility letters was unpaid on due date or exceeded the permitted facility limit, such overdue or excess sum would be subject to “the bank’s then prevailing overdue or over limit interest rate ……”, and the bank might “…… increase the interest rate on the entire amount outstanding under the Banking Facility Letters if any amount becomes overdue” (para 18), and the learned judge held that (a) the default rate stated in the Bank Charges Schedule was capable of being unilaterally changed by the bank at any time after the date of any of the facility letters (as expressly provided in the opening paragraph of the Bank Charges Schedule) (para 19), which explained why the facility letters did not state the prevailing rate, and (b) the Bank Charges Schedule was published by the bank in booklet form and was also readily accessible on the bank’s website, so the learned judge disagreed that the bank acted unconscionably or contrived to conceal the default interest rate in the circumstances (para 22) [169] DCCJ12640/1989, HHJ Downey (unreported, 12 January 1990) in which clause 10 printed on the face of the written contract provided inter alia that “…… [this] contract is expressly made subject to the terms and conditions set forth on the face and back thereof”, but the plaintiff was not aware of the arbitration clause on the reverse of the document when it received/signed the faxed copy of the document without the reverse side, nevertheless the learned judge held that (a) having regard to the existence and position of clause 10, the plaintiff was put on notice there were other terms in addition to those on the face of the document, and (b) reasonable steps had been taken to bring the other terms to the plaintiff’s notice, so the plaintiff must have agreed to the terms on the reverse of the document as it knew the offer was sent by fax and only the front of the document was sent, and yet it signed the document without asking for copy of the reverse side – not cited by Mr Ng or Mr Chain [170] [1997] CLC 168 in which the contract on a bond put option was agreed over the telephone, and the appellants later faxed to the respondents a written “revised confirmation” of the deal (which referred to the 1992 ISDA Master Agreement that contained a governing law and jurisdiction clause) that the respondents signed and faxed back, and Saville J of the English Court of Appeal (with whom Aldous and Simon Brown LJJ agreed) held that although the respondents did not have a copy of the master agreement in their possession and/or readily available to them, the express and direct reference to the master agreement in the written contract alone “incontrovertibly established” the jurisdiction clause was the subject ofconsensus between the parties because by signing without reservation the respondents had agreed in writing the incorporated terms (and thus the jurisdiction clause) “for the simple reason that the very words of the signed written contract itself are to such effect” – not cited by Mr Ng or Mr Chain [171] [2002] CLC 33 in which a media company launched a scratchcard game with the rules of the game printed in newspapers on a number of occasions (including rules 2 and 5 to the effect that although prizes for each game would be awarded to the player(s) who made a successful claim, a draw would take place for the prize if more prizes were claimed than were available in any prize category for any reason), and the claimant and another 1,472 people registered their claims for the prize being the mystery bonus cash amount, but the claimant did not win when the newspaper held a draw for the prize; the majority of the English Court of Appeal (Hale and Potter LJJ) held the contract was made when the claimant bought the newspaper, and the offer (and therefore the contract) clearly incorporated the term “Normal Mirror Group rules apply” under the heading “Ring and Win Today” in giving instructions on how to discover the extra bonus sum, which words were there to be read, and it made no difference whether or not the claimant actually read or paid attention to them as the defendant had done enough in the relevant context to bring the rules, which were not onerous or unusual, to the claimant’s attention – not cited by Mr Ng or Mr Chain [172] [2007] 1 WLR 2175 in which a German company faxed a quotation (expressed to be on its general terms and conditions but no copy thereof, which contained an exclusive jurisdiction clause, was sent) to an English company offering to sell satellite equipment, and the English company faxed the German company a purchase order ordering the equipment specified in the quotation, but on delivery the English company rejected the goods as defective; the English Court of Appeal held that an express reference in a contract to terms and conditions which contained an exclusive jurisdiction clause was sufficient to constitute an agreement in writing conferring jurisdiction even though (a) one party had not seen those terms and (b) the contract contained no specific reference to the exclusive jurisdiction clause itself – not cited by Mr Ng or Mr Chain [173] DCCJ3726/2011, DDJ Dick Ho (as he then was) (unreported, 27 May 2014) in which the plaintiff (who signed the mini-storage company’s standard form contract which expressly provided that upon signing the licence agreement the licensee agreed to the grant of use of the storage on the Terms and Conditions stated therein “and subject to conditions annexed herewith …… I have read and understood the provision and declarations on this page to which this agreement is also subject and my signature below indicates there of” – para 2, but the company’s staff did not give the plaintiff 第二頁條款at the time when he signedthe licence agreement – para 33) claimed against a mini-storage company for terminating the licence of his storage and throwing away his goods and chattels stored therein (para 1), and the learned judge held that “如果被告人的職員確有在簽訂該協議時把第二頁條款交給原告人，第二頁條款自必構成該協議的一部分。按合約法的基本原則，當原告人在該協議上簽署，即使沒有閲讀第二頁條款的内容，仍須受第二頁條款約束。參看L’Estrange 訴 F. Graucob, Limited [1934] 2 KB 394 判案書第403頁” (para 34), and after discussing the authorities in footnotes 169-172 above agreed with the submissions of the company’s counsel that “…… 無論原告人曾否收取、閱讀或簽署第二頁條款，他在該協議首頁已簽署確認接受該等條款，現在不能以未曾收取、閱讀或簽署該等條款為由，免受該等條款約束。即使該協議只訂明“subject to conditions annexed herewith”，而不像上述個別案例所涉合約條文般具體説明那些是什麽條款，也不影響法律效果 …… 裁定第二頁條款是該協議的一部分” – not cited by Mr Ng or Mr Chain [174] [2022] 1 WLR 4193, 4214-4218, which judgment was handed down after the Trial and which I need not rely but have included for completeness as an authority consistent with the line of cases referred to above [175] see paras 38-39, 55 and 61-62 of the DPO Reasons and para 27(a)-(e) above [176] see para 21 of the DPO Reasons [177] see paras 59-60 of the DPO Reasons and footnote 40 above [178] see para 40 of the DPO Reasons and para 27 (e) above [179] see paras 10 and 18-20 of C’s II Subs [180] but there was no supporting affidavit/statement evidence in support of such contention (see para 19 above) [181] see A Workshop Communications Ltd at paras 50-52 [182] see Kowloon Development Finance Ltd v Pendex Industries Ltd (2013) 16 HKCFAR 336, 345-346 cited in Ng Fuk Shing, the Personal Representative of the estate of Tang Koon Lan v Ng Fuk Nam (sued as executor of the estate of Ng To Bo, deceased, and in his own personal capacity) & anor HCA611/2015 (unreported, 16 November 2018) para 74 [183] see Kowloon Development Finance Ltd at p 346 cited in Ng Fuk Shing, the Personal Representative of the estate of Tang Koon Lan at para 74 [184] A2/131 [185] see para 55 of the DPO Reasons and para 27(b) above [186] see paras 55 of the DPO Reasons and para 27(b) above [187] see para 58 of the DPO Reasons [188] see paras 56-57 of the DPO Reasons and footnote 38 above [189] see documents annexed to C’s reply to D’s 3rd supplemental statement dated 23 January 2018 (C-63(14)-(20) and B21/450-456) [190] see C’s emails dated 23 May and 21 June 2011 to D in which C demanded D to reinstate his position (C-36(2) and E43/705-706, and C-62(43) and B19/419) [191] “With reference to the [27/8/10 Email] (EX RL1) paragraph 1 line 5, the then COO had affirmed the renewal and had removed any ambiguity to extend [C’s] [EC] to 03rd March 2016 which states “Company will bear the responsibility to affirm your new contract which will be extended for a period of 5 years expiring on 03rd March 2016.”.” (C-45(18) and B9/269) [192] “By [D’s] own admission in DS7 and of EX RL1, [D] …… to accept in toto that all of EX RL1 to have said Contract extended up to 2016 …… EX RL1 paragraph 1 line 5, the then COO had affirmed the renewal and had removed any ambiguity to extend [C’s] [EC] to 03rd March 2016 which states “Company will bear the responsibility to affirm your new Contract which will be extend for a period of 5 years expiring on 03rd March 2016” ……” (C-48(6) and B11/295) [193] the duties/responsibilities of the COO as stated in clause 1.4 of the Operations Manual OM-A (Rev-28 08.05.10) were as follows: “The [COO] is appointed by the President and employed by [D]. He must be acceptable to the Hong Kong CAD. He has corporate authority for ensuring that all operations and maintenance activities can be financed and carried out to the standard required by the authority and any additional company requirements. He is responsible for providing the necessary manpower, resources and facilities to enable [D’s] management and employees to perform the tasks for which they are responsible to ensure safe operations and airworthy aircraft. The COO maintains close communication with the President and liaises with the HK CAD. The COO coordinates with senior management for the implementation of fleet and route expansions. He also ensures quality assurance of each department, as well as corporate safety and security of the company. The COO covers function of the DFO in the latter’s absence” (C-93(1) and E84/807) [194] the duties/responsibilities of the Training Managers (TM) as stated in clause 1.9 of the Operations Manual OM-A (Rev-28 08.05.10) were as follows: “Training Managers (TM) are responsible to [GMT] for the formulation and implementation of aircrew training policy, practice and standards. They are normally TRE/IRE with solid background in training and testing of airmen. They hold a HKCAD License, are in current flying practice, and type rated on the fleet they are assigned to. Particular responsibilities of Training Managers are: To formulate and implement aircrew training policy, To establish check and training syllabi and procedures, To establish the requirements for flight crews in accordance with the AN(HK)O and related regulations, In consultation with the GMT be responsible for updating the relevant fleet OM-D Training Manual, To advise the GMT in the selection of training staff in accordance with the requirements of the OM-D Manual” (C-55 and E54/471) [195] C-63(14) and B21/450 [196] “In the then [GMT] Stewart’s prompt action of informing this then Acting DFO [Chow], in his [8/11/10 Letter], Contract Renewal [C], [MTP] (EX RS2, [Stewart] had again reminded him to extend [C’s] [EC] to 03rd March 2016 (1st paragraph of 4 Lines EX RS2) …… This also affirmed the Company’s [ie D’s] instruction/direction/notice, intention and obligation of renewing [C’s] [EC] to 03rd March 2016. [Chow] as DFO then was subordinate to the COO. [D’s DFO], being above the rank of General Managers of [D’s] hierarchy, reports direct to the COO” (C-45(19) and B9/270) [197] see footnotes 191 and 196 above [198] “With reference to DS2, [C] avers that emails, written and verbal communications between Management, [C’s] Superiors, such as those who ranked from Assistant Manager positions and above, such as the President, Vice President (VP), Chief Operating Officer (COO), Director of Flight Operation (DFO), General Manager Flying (GMF), General Manager Training (GMT), specifically former VP Captain Sun JF, COO Ronal Lim and former GMF/GMT Richard Stewart, did form part of the executed Contract as clarification on the said Contract ambiguity was sought by [C] before the expiry of the said Contract. [C] avers that at least, such said communications were part of the said Contract by implication. The mentioned personnel hereinabove and in the said Statement of Claim represented [D], and thus [D] is vicariously liable and responsible for all their actions thereto. Positive replies were received from Management (namely the former VP Sun and COO Ronal Lim) to rule out the ambiguity in the said Contract if any. [D’s] action was contrary to Management confirmation, good faith, logic, early promises, etc. of the said Contract. [C’s] Statement of Claim clearly had detailed the renewal notices of 5 years to 2016 (EX VP, EX RL1, EX RL2), or alternatively, which is denied, that the said Contract duration should be 3 years (renewable thereafter) after [C’s] first Line Flying Under Supervision (LFUS) to be conducted on the A330 aircraft fleet as in CS16 in the said Contract Clause 3 titled “Duration” (EX C1/C2). [C] views this DS2 denial as an affront and/or ignorance of the Laws of vicarious liability …… Also, [D’s] avoidance of mentioning EX VP, EX RL1, EXRL2 (from [C’s] Statement and [D’s] Reply) therein would show that [D] only looked for words or lines (Cherry picking) which suit its baseless assertions. [D] had made “notices” for [C’s] said Contract renewal an issue, thus any statement pertaining to Contract renewal by [D] Management would legally form part of the said Contract. The said Contract (EX C1/EX C2) clearly spelt out in the said Contract renewal as hereinbelow” (C-48(2)-(3) and B11/291) [199] see footnote 192 above [200] “…… Thus, this Honourable Court has an alternative and that is to appoint 05th March 2012 as the date for [C] to start Line Flying Under Supervision (LFUS), and the three years thereafter would be 06th March 2015. By the Then and Current “Company Policy” all Contracts from 2011 to 2014 would automatically be substituted/converted by the new 2015 Continuous Contract (EX CC1 and EX CC2 to refer). Restating the last 4 lines of CS16, [C] would not contest any issue of Line Flying Under Supervision if this Honourable Court rules that [C’s] [EC] be extended to 2016 or a permanent one as per the new Continuous Contract” (C-48(8) and B11/297) [201] “With reference to DS13, The position of former COO Ronal Lim (5th name of the 6 in the line-up below President Yang Jian Hong of Senior Management list EX COO) exposed the lies if any that [D’s] claim in DS13 that former COO Ronal Lim was not Senior Management. [D] in DS13 claimed that only notices/ instructions/directions of [D’s] Senior Management had the power/authority to renew [C’s] said Contract. As stated earlier in the Statement of Claims and in particular CS18, any of [D’s] Managers or Assistant Managers’ actions bear vicarious liability on [D]. Thus, any directive from the former COO was official instructions/notice as [D’s] Senior Management. [C] put it to [D] that all along HR was merely a facilitator (Contract was signed by and on behalf of the HR Department as it was then in the case of [C], there was no HR personnel then in Senior Management (highest Management rank in the HR Department then was only a General Manager), EX COO to refer) for the contract at the instruction of the Flight Operation Management as per EX VP or EX RL1 …… and thus [C’s said Contract] renewal fell upon the COO who headed the Flight Operation Department. There was then no other notice to the contrary of the COO (EX RL1, EX RL2, EX RS2). EX MGR (Training Managers, Para 1.9 Operations Manual) confirmed that all Managers are part of the Management including Assistant Managers (EX MGR Para 1.8.1, Operations Manual). Other Senior Managers are positions above Manager and are namely the DFO, GMF or GMT, who has greater significant authority than Managers. However, the vicarious liability principle remained the same, regardless whether or not, they were Senior Management. Former COO Ronal Lim was of the same group of Senior Management in the HKA/HKE communication directory (EX COO). To rule him out as Senior Management appeared to be malice on the part of [D]. Former COO HKA Ronal Lim was clearly spelt out in [D’s] Contact Directory as Senior Management. All Training Managers are responsible to the General Manager Training (GMT) as spelt out clearly in the Operations Manual OM-A Part 1 Page 12 of 12 (EX MGR) …… It was not [C’s] responsibility if the former COO’s instruction/direction/notice (EX RL2) via the GM Training (EX RS2) did not reach the HR Department. Even though the Former COO’s subordinate, the GMT had taken action (EX RS2) to show that the former COO (EX RL2) had so communicated ……” (C-48(11)-(13) and B11/300-302) [202] “With reference to DS23, EX CVCOO further strengthened CS32. Also the HR had records of [C’s] CV and application for the post of COO when it became vacant on 2nd September 2010. [C] had all the pre-requisite qualification and this must have been transmitted to the President and VP Sun because [C] had also copied to them. If [C] was not in management, would [D] choose [C] to be the candidate as DFO on April 2009? There might be jealousy that one day [C’s] continued employment might take over the office of the COO of [D]. But that was not for [C] to find out ……” (C-48(15)-(16) and B11/304-305) [203] see Liu Kam Cheong at pp 787 and 789-790 [204] see Chitty on Contracts 34th ed Vol 1 para 25-034 at p 1885 that stated “[the] parties to a contract may effect a variation of the contract by modifying or altering its terms by mutual agreement. In Berry v Berry a husband and wife entered into a separation deed whereby the husband covenanted to pay to the wife a certain sum each year for her support. His earnings proved insufficient to meet this obligation, so they agreed in writing to vary the financial provisions. It was held that this variation was valid and enforceable, being supported by consideration, and that it could be set up by the husband as a defence to an action against him on the original deed. A mere unilateral notification by one party to the other, in the absence of any agreement, cannot constitute a variation of a contract” [205] see Chitty on Contracts 34th ed Vol 1 para 25-035 at p 1885 that stated “[as] in the case of a rescission of a contract, the terms of a deed or written instrument may be varied by a subsequent agreement, whether oral or written. This may be reconciled with the rule that extrinsic evidence is not admissible to vary or qualify the terms of a written instrument, for that rule only relates to the ascertainment of the original intention of the parties, and not to a subsequent variation. A contract required by law to be made in or evidenced by writing can only be varied by writing ……” [206] see paras 36-71 of the DPO Reasons, and paras 27-30 and 32 above [207] see para 52(c) of the DPO Reasons, and para 27(i) above [208] at pp 29S-30B and 32K-33H (G/29-30 and 32-33) [209] see paras 38-45 and 55-62 of the DPO Reasons, and paras 27(a)-(e) above [210] see para 46 of the DPO Reasons [211] see para 47 of the DPO Reasons [212] see para 50 of the DPO Reasons [213] see para 52 of the DPO Reasons [214] see para 52(a) of the DPO Reasons [215] Mr Ng submitted that para 47 of the DPO Reasons only referred to the 27/8/10 Email stating that “Richard will effect your contract renewal at a later date” without mention of the extract from the 27/8/10 Email in para 110(a) above, particularly the part that stated the renewal of the EC would occur even in the event that D “did not give prior notice of renewal” and “notwithstanding any official instructions to [C] to the contrary” [216] Mr Ng submitted that para 49 of the DPO Reasons only referred to the 28/8/10 Letter stating “the Company will bear the responsibility to confirm [C’s] new contract” without conducting any or any proper investigation at all [217] Mr Ng submitted that para 47 of the DPO Reasons only referred to the 28/8/10 2nd Email stating that D’s then COO Lim “also instructed” D’s then GMT Stewart “to advise HR [human resources] for the renewal of [C’s] contract” without mention that such email clearly stated C’s “remuneration, benefits, terms and conditions” under the revised and renewed EC had been agreed to be the same as those under the EC [218] Mr Ng submitted that para 48 of the DPO Reasons only referred to the 8/11/2010 Letter being written by D’s then GMT (at the time when he would be leaving D) to D’s DFO to request D’s then (Acting) DFO to “advise HR [human resources] for the renewal of [C’s] contract” without mention of the extract from the 8/11/10 Letter set out in para 110(d) above [219] see paras 46-47 of the DPO Reasons, and para 27(g) above [220] see para 52(a) of the DPO Reasons, and para 27(h) above [221] see para 52(a) of the DPO Reasons, and para 27(h) above [222] see para 52(c) of the DPO Reasons, and para 27(i) above [223] see paras 22, 25-26, 35(a), 35(c), 41-45 and 52(a), (b), (d) and (e) of the DPO Reasons, and paras 25, 27(f) and 27(h) above [224] see paras 52, 54 and 63-68 of the DPO Reasons, and paras 27(h)-(i) and 28 above [225] see para 10 of D’s supplemental statement dated 20 September 2017 (D-12(4) and B14/329) [226] see para 10 of C’s reply dated 2 October 2017 to D’s supplemental statement dated 20 September 2017 (C-59(10)-(11) and B15/343-344) [227] see para 12 of D’s 2nd supplemental statement dated 12 December 2017 (D-14(4)-(5) and B18/367-368) [228] see “Reply12” of C’s reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017 (C-62(37)-(38) and B19/413-414) [229] at pp 76F-82S (G/76-82) [230] D-14(8) and B18/371, and see also para 64 of the DPO Reasons and paras 27(i) and 29 above [231] see paras 65-66 of the DPO Reasons, and paras 27(i) and 29 above [232] C-36(3) and E43/707-708, and see also para 67 of the DPO Reasons and paras 27(i) and 29 and footnote 64 above [233] see transcript of closing submissions at pp 15R-16I (G/252-253) [234] see paras 47-54 and 63-68 of the DPO Reasons and see paras 27(f)-(g), 28 and 29 above [235] see para 46 of the DPO Reasons and see para 27(f)-(g) above [236] see para 63 of the DPO Reasons, and para 29 above [237] Mr Chain further submitted this was corroborated by subsequent internal emails of D in January 2011 that decided not to renew C’s EC upon expiry of the contract period (see D14(7)-(10) and B18/370-3723) [238] see para 50 of the DPO Reasons, and para 27(g) above [239] see para 52(c) of the DPO Reasons, and para 27(i) above [240] see para 64 of the DPO Reasons, and para 29 above [241] see paras 63-67 of the DPO Reasons, and para 29 above [242] see para 68 of the DPO Reasons, and para 29 above [243] see Oriental Daily Publisher v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279, 291 – not cited by Mr Ng or Mr Chain [244] see para 32 of the DPO Reasons, and para 24(a) above [245] see para 44 of the DPO Reasons, and para 27(f) above [246] [2019] AC 119 [247] see Unruh v Seeberger (2007) 10 HKCFAR 31, 82 [248] see Unruh at p 81 [249] C-30 and E37/693 [250] C-45(3) and B9/254 [251] Mr Ng submitted that according to the contact list for D’s senior management (C-46(1) and E49/721), D’s “Senior Management” included President Yang, CEO Khalid Razack, Vice-President Zhong Guo Song, Vice-President Sun, COO Lim, and HCG Thong [252] at p 34D-V (G/34) [253] 34th ed Vol 1 para 15-031 at pp 1123-1124 [254] see Chitty on Contracts 34th ed Vol I para 15-030 at pp 1122-1123 and Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455, 465 – not cited by Mr Ng or Mr Chain [255] [2009] 3 EGLR 31 – not cited by Mr Ng or Mr Chain [256] CACV1049/2000 (unreported, 4 May 2001) paras 33-34 – not cited by Mr Ng or Mr Chain [257] [2002] 4 HKC 420, 429 – not cited by Mr Ng or Mr Chain [258] [2009] 1 HKLRD 455, 464-465 – not cited by Mr Ng or Mr Chain [259] HCA180/2010 (unreported, 20 August 2010) paras 107-111– not cited by Mr Ng or Mr Chain [260] HCA784/2912, To J (unreported, 29 May 2013) paras 26-30 – not cited by Mr Ng or Mr Chain [261] HCA529/2013 (unreported, 21 February 2014) paras 108-120 in which I agreed with To J’s reading of the authorities in Lucky Zone Holdings Limited and held “[there] is no room to doubt the principles for the construction of entire agreement clauses in Inntrepreneur Pub Company (GL) and Wing Siu Co Ltd ……” (para 120) – not cited by Mr Ng or Mr Chain [262] HCA888/2019, DHCJ M K Liu (unreported, 5 March 2021) para 31 in which the learned judge said “…… [it] is not in dispute that an entire agreement clause would nullify oral collateral agreement which seeks to modify the contents of the written contract, and that those authorities upholding oral collateral agreements did so because they were independent contracts which did not modify the written contracts containing the entire agreement clause. In my view, this is the correct legal position……” (para 31(1)) – not cited by Mr Ng or Mr Chain [263] [2010] 1 WLR 2715 – not cited by Mr Ng or Mr Chain [264] the exception mentioned by Longmore J in para 82 on p 2734 was not relevant to the present case because C sought enforcement of the alleged pre-contractual collateral contract that promised to extend C’s EC for 5 years after expiry of the EC that modified the express terms of the EC (ie clause 3 of the EC and clause 2.2.4 of the 2009 COS incorporated by clause 12) [265] DCCJ1571, 1615, 1616, 1620, 1685, 1686, 1687, 1688 and 1690/2013, DDJ D Ho (as he then was) (unreported, 20 January 2014) – not cited by Mr Ng or Mr Chain [266] see Inntrepreneur Pub Co at p 33 (see para 148 above), Natamon Protpakorn at p 465 and Rock Advertising Ltd at p 130 [267] see para 74 of the DPO Reasons, and para 33 above [268] see paras 28 and 74 of the DPO Reasons and para 33 above [269] C-94(13) and D3/569 [270] similar to clause 2.3.6 of the 2009 COS (D-22(8) and F13/945), and see para 54 of the DPO Reasons and para 28 above [271] D-14(9) and B18/372 [272] see Law Shiu Kai v Dynasty International Hotel Corp & ors [2004] 2 HKLRD 524, 541 and Employment Law and Practice in Hong Kong 2nd ed para 7.007 at p 273 [273] [2004] 2 HKLRD 524 [274] see also Employment Law and Practice in Hong Kong 2nd ed paras 7.004-7.006 at p 272-273 [275] C-24 and E31/681 [276] C-25 and E32/682 [277] C-31 and E38/694 [278] see para 74 of the DPO Decision, and para 33 above [279] at pp 41R-45B (G/41-45) [280] see paras 56-57 of the DPO Reasons, and see Chitty on Contracts cited in para 88 above and footnote 38 above [281] [1998] 1 HKLRD 650, 657-657 [282] see Chitty on Contracts 34th ed Vol I para 15-060 at pp 1140-1141 [283] at pp 122N-124C (G/122-124) where C claimed clause 4 of the EC meant the EC was terminable by notice on “commencement” of the applicable conversion course, but the EC was not terminable after he completed such course [284] D-11(2)-(3) and B14/327-328 [285] C-63(8)-(9) and B21/444-445 [286] C-20 and E27/677 [287] at pp 122N-124C (G/122-124) [288] see the 13/1/09 Email that stated inter alia “…… [thus] no conversion courses for you until our future expansion plan of A330 aircraft introduction sometime next year. Transition course is not related to any Type conversion course. The Transition Course you had completed in November 2008 is to enable you to conduct B737-800 courses for training of foreign pilots of parent company Hainan Airlines. When you complete you first Line Flying Under Supervision which we had planned for you in March 2009, you would have satisfied your employment contract Clause 3 Duration requirements” (see para 97 above) [289] see para 28 of C’s revised statement of claim dated 20 September 2011 (C-43(9) and B6/239), paras 3 and 30 of C’s revised statement of claim dated 31 May 2017 (C-45(7)-(8) and (23), and B9/258-259 and 274), para 4 of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2011 (C-48(2)-(3) and B11/291-292), and paras 17 and 37 of C’s submissions dated 22 October 2018 (C-94(9) and (18) and D3/565 and 574) [290] A2/74-75 (alleging “deception to confidence and trust” on the part of D and seeking damages for breach of implied term of trust and confidence, ie humiliation, mental shock and psychological trauma for wrongful termination of C’s employment), 83-85 (alleging D’s wrongful reliance of the 2008 COS and 2009 COS by virtue of clause 12 of the EC to effect wrongful termination of C’s employment when such COS did not apply to non-management pilots and when termination could only be effected upon mutual agreement), 86-87 (claiming general, punitive, exemplary and aggravated damages (including “damages for breach of the implied term of trust and confidence”) for “conspiracy …… negligence, res ipsa loquitur, discrimination, unlawful, unfair, unjust, unreasonable, wrongful, malicious, fraudulent, deception actions and/or inactions on the part of [D] in perpetrating the termination of [C’s] employment prematurely without just cause similar to summary dismissal at will and not renewing [C’s] contract from 4/2/2011 to 3/3/2016 and other promises relating to A330 aircraft promotion, instructor/examiner training and etc as per [C’s] COO’s instructions/orders/notices/agreements”), and 150 (seeking “all tortious special, general, punitive/exemplary aggravated damages including damages for breach of implied term of trust and confidence …… to compensate [C] and [C’s] family for the shame, pain, mental shock, suffering, hardship etc that all friends and airline colleagues had assumed that an exemplary employee was sacked due to perhaps [C’s] misconduct or incompetence at work” such that C and his family had to avoid being seen by friends and colleagues) [291] C urged the DPO to find enough “untruthful, unfair or insensitive conduct” on D’s part from the allegedly overwhelming evidence adduced before her, suggesting that main takeaway from Tadjudin Sunny v Bank of America, National Association CACV12/2015 (unreported, 20 May 2016) was that employers should act in good faith (see para 4 of C’s letter dated 5 November 2018, C-98(1) and D6/595), and to consider the emphasis placed by Tadjudin Sunny on employers acting in good faith and the court drawing its own inferences as to the true reason for dismissal from the circumstances, and the emphasis placed by Kwan Francis Hung Sang v Hong Kong Exchanges and Clearing House HCA1498/2010, DHCJ Au-Yeung (as she then was) (unreported, 12 December 2011) on considering the surrounding circumstances to see whether there was “constructive dismissal” (see para 8 of C’s letter dated 5 November 2018, C-98(3) and D6/597) [292] CACV12/2015 (unreported, 20 May 2016) [293] Mr Ng submitted B Chu J in Mallorca Joenalyn Domingo v Ng Mei Shuen [2018] 3 HKLRD 694 allowed an appeal from the Tribunal on the basis that the presiding officer failed to investigate similar issues, but I note in that case (a) the employee claimed she was summarily dismissed, (b) the presiding officer struck out the employee’s claim on procedural basis that there were no exceptional circumstances to allow the organising secretary of a trade union to represent the employee, and that there was no sufficient reason for the employee to give evidence by video link from overseas, so there was no consideration of the employee’s claim on the merits, (c) B Chu J overturned those procedural decisions as plainly wrong and not on substantive reasons, and (d) the learned judge merely observed briefly that C’s claim did not appear to be without merit (pages 715-716) [294] see para 72 of the DPO Reasons, and para 31 above [295] D considered Tadjudin Sunny (in which the court on the particular facts and circumstances of that case implied an “anti-avoidance” term that the employer’s right to terminate by notice may not be exercised in order to avoid the employee being eligible for the performance incentive programme which constituted a significant part of her remuneration package) distinguishable as no such or similar right requiring protection by way of an implied term existed in the case before the DPO (which was not pleaded and C ought not be allowed to raise at such late stage) (see paras 5-7 of D’s supplemental submissions dated 7 November 2018, D-25(2) and D7/602), and submitted that C’s remedy was in any event limited to payment in lieu of 3 months’ notice, and C had not hitherto raised any allegation of constructive dismissal (the basis of which was unclear and the proposition was made too late) (see para 11 of D’s supplemental submissions dated 7 November 2018, D-25(3) and D7/603) [296] as seen in, say, the following: (a) C suggested he would not have recommended his whole family (himself included) to join D if he knew their contracts would not be renewed after the initial contract of 3 years (for his son) and 5 years (for himself) for there was no future or livelihood for employees without renewal of contracts, so “…… the question to ask is if the company had acted in good faith with so much sacrifices an employee had put in? If it had acted in good faith, why was the contract not renewed if as it so claimed? Thus I can only think in line with the company’s good faith that it had no reason to state that my contract had run its course. Thus I would not leave the company against my own free will, and I considered myself as still being employed” (see para 3 of C’s supplemental statement dated 11 August 2011, C-2(2) and B2/208), and (b) C claimed that D’s then HCG Thong in his email dated 17 August 2010 gave credence to the fact that D wanted C to work long term with D, which “should be synonymous with the renewable clause on EX C1, C2 Clause 3 “Duration” paragraph 2. Is there good faith in ending my contract on 03 March 2011 by Flight Operation if any? I pray the honourable Court would order [D] to act in good faith, execute their recorded intention and/or promise of my renewable contract to 2016 at least” (para 28 of C’s supplemental statement dated 11 August 2011, C-2(7) and B2/213, and para 28 of C’s revised statement of claim dated 20 September 2011, C-43(9) and B6/239) [297] the Court of Appeal in Tadjudin Sunny distinguished Johnson on the basis that (a) Part X of the Employment Rights Act 1996 provided a more comprehensive statutory regime of employment protection against unfair dismissal than Part VIA of the EO, (b) the issue in Johnson was whether the implied obligation of mutual trust and confidence could be used as a platform to allow an employee to recover damages for loss arising from the manner of his dismissal, but the issue in Tadjudin Sunny was whether the employee’s employment contract with the employer contained a specific implied term, ie whether the employer was under an obligation not to exercise the power of termination in order to avoid the employee being eligible for the employer’s performance incentive programme, and (c) in Johnson the House of Lords was asked to develop the common law in relation to claims by an employee for damages for loss arising from the manner of his dismissal, but the issue in Tadjudin Sunny was a narrow one of whether on the particular facts and circumstances of the case the anti-avoidance term ought to be implied into the employee’s contract with the employer (para 77) [298] HCA741/2016 (unreported, 6 December 2016) [299] in Tadjudin Sunny To J explained in para 7 that “[as] a matter of law, the duty of mutual trust and confidence between an employer and his employee is nowadays implied into every contract of employment. The existence of this implied term in a contract of employment was affirmed by the House of Lords in Mahmud v Bank of Credit and Commerce International SA (in compulsory liquidation). See also Johnson v Unisys Ltd; and Eastwood v Magnox Electric plc” (see also Semana Bachicha v Poon Shiu Man [2000] 2 HKLRD 833, 844-849) [300] see Semana Bachicha at p 850 [301] see Malik v Bank of Credit and Commerce International SA [1998] AC 20, 40-41 that made clear contractual damages for breach of contract (ie breach of implied duty of mutual trust and confidence) may in an appropriate case include reputation damage (see also Johnson v Unisys Ltd [2003] 1 AC 518, 541) [302] see Malik at pp 35-37 and 46-47 and Samana Bachicha [303] HCA320/2011, DHCJ Seagroatt J (unreported, 20 June and 8 July 2013) paras 8-22 and 29-30 of the judgment on damages dated 8 July 2013 [304] see Weng Chi-cheong at para 50 [305] (a) C asserted all good testimonies from D’s then President Yang, then Vice-President Sun, then COO Lim, then HGC Thong, then DFO Lui, then GMT Stewart and “Ms Karen Mak Current ([C] believes) GM Recruitment and Administration (EX J1)” were inconsistent with D’s conduct in not renewing C’s EC when “all others with lesser achievements had theirs renewed”, so “[whether] or not there was conspiracy by [D] fearing [C] would get promoted to the vacant COO position then in 2011, [C] should not be so victimized” (para 32 of C’s statement of claim dated 31 May 2017, C-45(24) and B9/275), (b) C claimed (i) he had written to D’s management not to cover up a criminal assault case involving Captain Kenny Ooi (“Ooi”) who assaulted and caused injury to his superior D’s then GMT Stewart on 19 July 2010 who questioned Ooi for favouring rostering practice for his rumoured lover, and who was convicted and placed on 24 months’ probation, (ii) although Thong said Ooi should be dismissed after the court case, Ooi was not suspended, demoted or dismissed, but there were rumours that senior management was angry about C’s reminder to suspend Ooi (which caused Ooi embarrassment) and did not intend to renew C’s EC, (iii) if such rumour were true, “these people” should be reprimanded by the court for covering up and abetting a criminal offence, for not taking action against Ooi, for favouritism/corruption in shielding Ooi without suspension, demotion and/or dismissal, and for injustice to Stewart, and (iv) it would be curious to know if Ooi’s contract was or would be renewed after the criminal offence on 19 July 2010 (paras 37-38 of C’s supplemental statement dated 11 August 2011, C-2(10) and B2/216), (c) C claimed clause 3 of the EC that provided for the option for renewal for further 3 years was inconsistent with D’s promise of renewal for 5 years or more as even new pilots were given permanent/continuous contracts, and C suggested it was a mockery to give 5 year permanent/continuous contracts to untested new employees and not renew on similar basis for deserving existing employees and asked rhetorically “[what] signal [D] wants such ‘victims’ ([C] included) if any to propagate to the world about such unfair and/or wrongful and/or illegal if any, treatment by an employer who had asked employees for loyalty and dedication to serve for the long term and terminate [C] before the actual/legal expiry of the said Contract?” (referring to the letter dated 25 May 2009 by D’s then President Yang to C) (para 6 of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2017, C-48(3)-(4) and B11/292-293), (d) C submitted that for D to say 3 March 2011 or the expiry of 3 years from joining D was the last day of the EC was breach of contract since the 3 years should count from when C was released to LFUS (line flying under supervision) and since it was in breach of the contract renewal clause, C would leave it to the Tribunal to decide whether D failed to renew the EC “by mistake or malice” or failure “to understand or intentionally not to understand” the EC was not from the date of employment (when C had to go through various processes to obtain requisite rating and licensing requirements) (para 10 of C’s consolidated reply dated 21 June 2017 to D’s statement dated 9 September 2017, C-48(5)-(6) and B11/294-295), (e) C claimed he was a more deserving candidate for contract renewal than his students/juniors, questioned why Ooi was not suspended or dismissed for his criminal assault on Stewart for which he was convicted and sentenced (see para 197(a) and (d) below), and further claimed “evidence of victimization, bias, injustice, unfairness, no reasonable cause of not renewing [C’s] said Contract, etc appeared strong. Thus, [C] prays that this Honourable Court gives justice to [C]” (para 53 of the appendix to C’s statement of claim dated 31 May 2017 and C’s reply to D both dated 9 August 2017, C-49(5)-(6) and B12/312-313), (f) C again questioned why D did not suspend Ooi pending disciplinary proceedings for criminal offence of assaulting Stewart for which he was convicted and sentenced, when C justifiably sent a letter dated 7 August 2010 to remind D’s then (Acting) DFO Chow (copied to D’s then HCS Goh) who ignored C’s advice, and C was aggrieved that D renewed Ooi’s contract (with rumours that Ooi’s father “had bought” some of D’s senior management) but ended C’s EC by early termination, saying that C still awaited D to take steps for his reinstatement and to take disciplinary action against Ooi (para 55 of the appendix to C’s statement of claim dated 31 May 2017 and C’s reply to D both dated 9 August 2017, C-49(8)-(9) and B12/315-316), (g) C claimed he exposed Ooi’s incompetence by emails in 2010 to Ooi and “his bosses” being D’s then COO Lim and D’s then Vice-President Sun, and it was revenge on the part of D’s then (Acting) DFO Chow on behalf of his “blue-eyed boy” Ooi by not renewing C’s EC, and on 4 January 2010 Stewart wrote to inform C that “Simon Wu [HKE’s COO] …… said VP Sun may not renew your contract if you did not help in stopping Police from Investigating. He also said that he cannot hire me as TRI in HKE if I do not back off”, and whilst C treated this as a rumour, he queried why he was made victim of “such Malicious Conspiracy or Fraud if any” when he was just being civic-minded in urging D’s management not to cover up criminal behaviour with the Civil Aviation Department notified, and when he was in no position to stop police investigation that resulted in conviction against Ooi (Reply8 of C’s reply dated 26 December 2017 to D’s 2nd supplemental statement dated 12 December 2017, C-62(25)-(26) and B19/401-402), (h) C claimed that D’s then Vice-President Sun and D’s then (Acting) DFO Chow knew C had given evidence to the police of “unsafe workplace” due to Ooi not being dismissed after his criminal assault of and his insubordination against Stewart for which he was convicted and sentenced, and further claimed Ooi had been violent to C whom D’s then GMT Stewart appointed to investigate into “the dishonesty, abuse of power, violation of HKCAD regulations on Training of captain Ooi on 14/6/2010” and when C rendered incriminating reports to Stewart, the matter was covered up by D’s then (Acting) DFO Chow with no disciplinary enquiry or punishment to Ooi (para 39 of C’s submissions dated 22 October 2018, C-94(18)-(19) and D3/574-575), and (i) C complained there was no action by D against Ooi for his assault on Stewart despite his many reminders to D’s management, so C queried “…… wasn’t malice in these actions or inactions by [D]? weren’t these Defendants with email addresses and recipients and copied recipients guilty of collusion, conspiracy and malice with reckless act and intention harm to cause [C] to lose a qualification to work and had breached [C’s] said contract? ……” (paras 52-53 of C’s submissions dated 22 October 2018, C-94(23)-(24) and D3/579-580) [306] (a) at the Trial, C submitted that “…… [D] has given all the statements, pre-trial … (indistinct) argue against that, So I’m going to prove it to your judge here that they have malice, they have conspiracy and they have been victimization and discrimination and also unjust …”, and “…… [my] contention here is that they have been very malicious in terminating my employment not according to the contract ……”, but the DPO took the view that she did not have to deal with the issue of malice so long as they had the right to terminate the EC as provided for therein (see Transcript at pp 120R-121T and G/120-121), and (b) in C’s closing submissions as regards alleged malice and discrimination, he submitted that “Okay, this RTPC is only part of the malice and discrimination. There are still a lot of other things mentioned, like promotion to A330. When [C] was able – was relieved from every appointment and every assignment, they put junior people up. We have a seniority system and you put a junior people up. These are all malice. And, also, you put a non-management person up who is junior to me and I am a management. Management should have priority, And, under C94, you are saying any promotion internal staff or management staff to have priority, So there’s clear discrimination, victimisation. So, there are a lot of things which allege, in all the pre-trial statement as well ……” (see transcript of C’s closing submissions at pp 16S-17C, G/253-254) [307] see the Transcript at p 203E-J (G/203) [308] C-32(1)-(4) and E39/695-698 [309] C-12 and E19/664 [310] C-16 and E23/671 [311] C-17 and E24/672 [312] C-49(5)-(6) and (8)-(9) and B12/312-313 and 315-316, and see footnote 305(e)-(f) above [313] C-62(25)-(26) and B19/401-402, and see footnote 305(g) above [314] see the Transcript at pp 201K-202D (G/202-202) [315] see the Transcript at pp 121J-122B (G/121-122) [316] eg (a) C alleged that “[malice] in [D’s] unlawful termination of [C’s] employment cannot be ruled out. These train of process from intentionally invalidating [C’s] flying licence by breaching the said contract (C5.1) Clauses (a), (b), (c), (d) and (e) every 6 months from mid 2010 were clear evidence of fraud, malice, conspiracy etc, compared to [D’s] adherence the said Contract (C5.1) Clauses (a), (b), (c), (d) and (e) religiously every 6 months from 2008 to early 2010 (my emphasis) (para 22 of C’s objection to Thong as witness for the Trial dated 7 October 2018, C-88(9) and D1/537), (b) C alleged “[C] would like to comment that such the above lies and cover ups of Malicious disclaimer of natural contract expiry after 5/3/2012 for over 7 years and for over 7 years, such malicious victimizations, conspiracy, unjust, unfair, unreasonable and unlawful actions of “killing” [C’s] RT/PC …… on March 2010, (this was one), and 6 months later September 2010 (this was twice), and 6 months later on March 2011 (this was thrice), [C] was still being employed through March 2011, …… AND the stripping of [C] of all work from 21/11/2010 …… AND had refused to send [C] for the A330 course from 21/11/2010 where every junior got to go ahead of [C] …… and “The cover up was one of the worst in the history of cover ups of airlines”” (my emphasis) (letter dated 24 October 2018 from C to the DPO, C-97(1) and E87/814), and (c) C claimed that “…… non-Management Captain Deddy Soepandji C92(4) of the same age and lower seniority than [C] having the same contract and all other junior management pilots having the same renewable contract of 3 years after Line Flying Under Supervision, had their contracts renewed and worked to age 65, clearly indicted malice on the part of [D]. What’s more there were conspiracy, fraud, victimization, discrimination, unfair, unreasonable, unjust, wrongful, unlawful acts etc, of termination of [C’s] employment. More So a convicted violent criminal management pilot [Ooi] with documented insubordination at the material time had his similar contract as [C] renewed. The sinecure action, a position requiring little or no work but giving the holder status or financial benefit from 21/11/2010 to 3/3/2010, further shed a glaring mala fide light even for any non-lawyer” (my emphasis) (para 7 of letter dated 5 November 2018 from C to the DPO, C98(2) and D6/596) [317] see sections 6 and 70 of the Race Discrimination Ordinance Cap 602 [318] see Liu Kin Wo & ors v Treasure Consultants Limited & ors HCLA 66/2003, Lam J (as he then was) (unreported, 22 March 2004), para 12 in which the learned judge said “[as] far as the [Tribunal] is concerned, its jurisdiction does not extend to tortious liabilities. Hence, insofar as the references to those tortious elements by the Presiding Officer are meant to be read as holding the 5th and 6th Defendants liable on account of tort, he was acting outside jurisdiction. Therefore the award cannot be maintained on the ground of liabilities stemming from the torts of misrepresentation or conspiracy” [319] see Chung Man Chiu & anor v Ad-Link Communications Ltd [2003] 1 HKC 217, 223 in which DHCJ Lam (as he then was) said “[it] is trite law that cross-examination of the witnesses of the other party is fundamental to a fair trial. This principle is applicable even in respect of trials in the [Tribunal] …… Although a presiding officer is under a duty to investigate relevant matters, the performance of such a duty cannot normally replace the right of a party to challenge the evidence of the other party by cross-examination. This is because in the exercise of his duty to investigate, a presiding officer is obliged to maintain an impartial stance and his investigation should not go to the extent of cross-examining a witness as if he were the lawyer for the other side ……”, and Le Thi Bich Thuy Kitty at para 10 in which Lam J (as he then was) said “[there] is a distinction between the duty to investigate and playing the role as advocate for one litigant. A Presiding Officer is obliged to remain neutral and impartial in carrying out his duty to investigate ……” [320]see Wong Chi Yung v Antech System Incorporated Ltd [2001-2003] HKCLRT 425, 432-436 in which A Cheung J (as he then was) citing Chung Man Chiu & anor and Siu Koon Fung & 194 others held that “…… [the] cross-examination of witnesses is a crucial part of the hearing by which factual disputes are to be determined. The right to cross-examine witnesses is also a fundamental right of the parties which cannot easily be displaced. In particular, while a presiding officer plays the role of an active investigator, he is also the adjudicator of the disputes between the parties and, as such, must maintain his impartiality. In questioning witnesses of his own accord, the presiding officer is not acting as counsel or cross-examiner for the other party to the case. In other words, the questioning of witnesses by the presiding officer does not replace the cross-examination of witnesses. This is not to be looked at solely from the perspective of a presiding officer’s impartiality. Another important aspect is that the presiding officer is not the legal representative of either party and never receives instructions that parties to proceedings ordinarily give their legal representatives. The presiding officer cannot be fully conversant with the case of either party, particulars of facts and background to the case. This being the case, the parties cannot rely on questions raised by the presiding officer as a complete substitute for cross-examination, and the presiding officer cannot assume that he is able to fully understand the cases of both parties and conduct all such cross-examination as is necessary. …… Therefore, whether viewed from the perspective of a presiding officer’s impartiality, or viewed from the perspective of whether he is provided with sufficient information or instructions so that he can conduct such cross-examination as is appropriate, the questioning by the presiding officer cannot displace the cross-examination by the parties. In an ordinary case, in order to perform his investigative role correctly and properly, the presiding officer should, in respect of any matter which he considers relevant to the disputes between the parties, direct each party to testify and adduce evidence, and then allow the other party to cross-examine on and rebut or challenge such evidence, and finally make findings of fact on the basis of the available evidence. The presiding officer’s role is to direct the parties and investigate the relevant matters, not to conduct cross-examination ……” [321] see the Transcript at p 75U (G/75) [322] see the Transcript at p 77F (G/77) [323] see the Transcript at p 118T (G/118) [324] see the Transcript at p 119A (G/119) [325] see the Transcript at p 128B (G/128) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCLA 27/2018