Suen Hung Shan v. Wong & Ouyang (HK) Ltd

CACV 427/2023, [2024] HKCA 891

On Appeal From [2023] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 427 OF 2023

(ON APPEAL FROM HCA NO 1796 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.The is the Defendant’s application to strike out the Plaintiff’s Notice of Appeal dated 20 December 2023 on the ground that it is frivolous, vexatious and/or an abuse of the court’s process, or, alternatively, for security for costs of the appeal.

2.Having considered the papers and the submissions before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.For the purpose of disposing of the present applications, the following brief summary of the background facts of this case, taken largely from the written judgment of Deputy High Court Judge H Au-Yeung dated 24 November 2023 (“the Judgment”), should suffice.

4.The Plaintiff was an employee of the Defendant, a company engaged in architecture practice.

5.By an employment agreement dated 21 December 2018 (“the 1^st Employment Agreement”), the Defendant employed the Plaintiff as a Senior Resident Architect for a project known as “Galaxy Cotai, Mega Resort Lot 3, Macau” (“the Resort Development”) for a fixed term of 18 months commencing on 28 January 2019. Prior to the expiry of the three-month probation period under the 1^st Employment Agreement, the Defendant terminated the Plaintiff’s employment with effect from 18 April 2019.

6.Arising out of the termination of his aforesaid employment, the Plaintiff commenced proceedings against the Defendant in the Labour Tribunal (LBTC 2091/2019) (“the 1^st Labour Tribunal Case”). Those proceedings were subsequently settled by the parties pursuant to a settlement agreement dated 27 August 2019 (“the Settlement Agreement”).

7.The Settlement Agreement, printed on the Defendant’s letterhead and signed by the parties, provides as follows:

“Dear [Plaintiff]

We write to confirm that by agreement between the [Defendant] and your goodselves on the following terms, you have agreed that your claim on the termination of your appointment as Senior Resident Architect for the Galaxy Cotai, Mega Resort Lot 3 Macau shall deem to be fully and finally settled both in Hong Kong and Macau:

1. Your acceptance of appointment as Technical Manager in Hong Kong as per our letter of 27 August, 2019.

...”

[emphasis added]

8.Pursuant to Clause 1 of the Settlement Agreement, the parties entered into a new employment agreement contained in a letter also dated 27 August 2019 (“the 2^nd Employment Agreement”), under which the Defendant employed the Plaintiff as a Technical Manager in Hong Kong in relation the development of Two Taikoo Place (“the Office Development”).

9.The 2^nd Employment Agreement provides as follows:

“1. Contract Period

The period of this contract shall be deemed to have commenced on 19 April, 2019 and shall continue to 27 July, 2020. The employment period may be extended if mutually agreed.

2. Assignment

You will be working full time at our Hong Kong office in relation to Two Taikoo Place office development.

3. Salary

You salary will be HK$110,000 per month.

4. End-of-contract gratuity

(i) An end-of-contract gratuity of 15% of basic salary actually earned shall be payable only upon completion of the employment period with satisfactory performance.

(ii) In the event that the contract is terminated by the employer for reasons of your negligence, misconduct etc., no end-of-contract gratuity shall be payable.

(iii) In the event that the employee resigns for any reason before completion of the entire employment period, no end-of-contract gratuity shall be payable.

(iv) In the event that the contract is terminated by the [Defendant] pursuant to Clause 6 of this contract and not for reasons as stated in Clause 4(ii)，a portion of the end-of-contract gratuity shall be payable on pro-rata basis.

(v) Save for the abovementioned, a deduction of HK$164,450.00 from the gratuity calculated in accordance with Section 4(i) or Section 4(iv) will be applied.

…

7. Termination

Employment can be terminated within 30 working days’ notice from either party.”

10.On 28 August 2019, the Plaintiff obtained leave from the Labour Tribunal to withdraw all his claims made in the 1^st Labour Tribunal Case.

11.By a letter dated 2 June 2020 (“the Termination Notice”), the Defendant informed the Plaintiff that his employment under the 2^nd Employment Agreement would be terminated on 27 July 2020.

12.On 11 September 2020, the Plaintiff commenced fresh proceedings in the Labour Tribunal (LBTC 1833/2020) (“the 2^nd Labour Tribunal Case”), in which the Plaintiff claimed against the Defendant for the total sum of HK$4,718,450, made up as follows:

(1)  wrongful deduction of the sum of HK$164,450 from the end-of-contract gratuity payment;

(2)  failure to pay the outstanding total sum of HK$3,960,000 (HK$110,000 x 36); and

(3)  3-year gratuity in the total sum of HK$594,000 (HK$3,960,000 x 15%).

13.On 6 October 2020, Mr David Chan, Presiding Officer of the Labour Tribunal (“the Presiding Officer”), made an order to transfer the 2^nd Labour Tribunal Case to the Court of First Instance. The Plaintiff’s Claim Form filed in the Labour Tribunal was ordered by Master S H Lee on 9 December 2020 to stand as the Writ of Summons in the transferred proceedings.

14.In the Statement of Claim filed by the Plaintiff on 22 January 2021, he sought an order that he be re-employed by the Defendant. Alternatively, he claimed for the said sum of HK$4,718,450. The Judge summarised the Plaintiff’s claims as follows:

(1)  The Plaintiff entered into the 1^st Employment Agreement because of the Defendant’s promise that it would employ him to work for Phase 4 of the Resort Development (“the Oral Agreement”), which was estimated to take three years to complete. However, in breach of the Oral Agreement and the mutual trust between the parties, the Defendant terminated the Plaintiff’s employment around three months after the commencement of employment. He therefore commenced the 1^st Labour Tribunal Case against the Defendant.

(2)  Despite the Settlement Agreement, the Plaintiff had not waived any of his claims made in the 1^st Labour Tribunal Case.

(3)  It was agreed under the Settlement Agreement, among other things, that the Defendant would employ the Plaintiff for a total period of 47 months from 27 August 2019 (the date of 2^nd Employment Agreement). Since the 2^nd Employment Agreement was terminated by the Defendant after only 11 months, he was entitled to claim against the Defendant for the wages and end-of-contract gratuity for a further period of 36 months.

(4)  It was unreasonable of the Defendant to dismiss the Plaintiff without renewing his employment for another three years when it was stipulated in the 2^nd Employment Agreement that the Defendant would renew his employment if it was satisfied with his performance. The fact that the Defendant thanked the Plaintiff for his contribution in the Termination Notice and paid him end-of-contract gratuity demonstrated that the Defendant was satisfied with his performance.

(5)  There was an implied term in the 2^nd Employment Agreement that the Defendant should give reason for termination of the Plaintiff’s employment, but the Defendant failed to do so.

(6)  Clause 4(v) of the 2^nd Employment Agreement, which provided for a deduction of HK$164,450 from the end-of-contract gratuity payment, was added without the consent of the Galaxy Entertainment Group (“GEG”), the developer of the Resort Development, rendering the 2^nd Employment Agreement invalid.

THE JUDGMENT

15.The Plaintiff’s claims were tried by the Judge on 3 October and 6 November 2023. On 24 November 2023, the Judge handed down the Judgment.

16.Relevantly for the present purpose, the Judge made the following material findings in the Judgement:

(1)  A full and final settlement of the 1^st Labour Tribunal Case had been reached by the parties, and the Settlement Agreement and the 2^nd Employment Agreement were entered into accordingly. It was futile for the Plaintiff to challenge the effect of the Settlement Agreement by putting forward arguments, among other things, on whether the terms of the 1^st Employment Agreement were in contravention of the law of Macau, or on the alleged breach of the 1^st Employment Agreement by the Defendant.

(2)  The alleged Oral Agreement was contrary to the provision of the 1^st Employment Agreement that the Plaintiff’s employment would be for a period of 18 months only. If the parties had reached the Oral Agreement as alleged, they would have fixed the term of the employment, not by reference to a specific date, but by reference to the duration of Phase 4 of the Resort Development. In any event, the Oral Agreement could not assist the Plaintiff, given the Settlement Agreement reached by the parties.

(3)  The 2^nd Employment Agreement was a fixed term contract which expired on 27 July 2020, and the Plaintiff’s employment with the Defendant had come to an end by effluxion of time. The Defendant was not obliged to renew the Plaintiff’s employment (Ko Hon Yue v Liu Ching Leung & Others (HCA 3494/2003, unreported, 4 August 2008), §§171-173 per Chu J (as she then was)). It was merely the Plaintiff’s subjective belief that the Defendant would renew the 2^nd Employment Agreement for at least another three years, which was contrary to the Plaintiff’s own case that his employment with the Defendant did not expire on 27 July 2020 (in which case there would be no need for any renewal of his employment).

(4)  The Termination Notice did not seek to terminate the 2^nd Employment Agreement earlier than scheduled. In any event, the Defendant was not obliged to give reason for the termination.

(5)  There was no reason why consent from GEG was required for the inclusion of the provision for the deduction of the sum of HK$164,450 from the end-of-contract gratuity payment in the 2^nd Employment Agreement.

17.The Judge also dealt with the Plaintiff’s complaint that although the Defendant had served two witness statements, namely, one by Mr Lam Ping Hong Robert (“Mr Lam”) (a senior director of the Defendant), and the other by Mr So Wing Kei Wayne (“Mr So”) (an associate director of the Defendant), it only called Mr Lam to give evidence at the trial, thereby depriving the Plaintiff of the opportunity to cross-examine Mr So. The Judge considered the Plaintiff’s complaint to be misconceived because the Defendant had the right to decide whether or not to call any particular witness to give evidence in court, even though a witness statement of that witness had previously been served. Further, the Judge did not find Mr So to be an important witness on the facts of this case, and held that no adverse inference should be drawn against the Defendant for its failure to call Mr So as a witness.

18.Accordingly, the Judge dismissed the Plaintiff’s claims, and made a costs order nisi that the Plaintiff should pay the Defendant’s costs of the action, to be taxed if not agreed.

19.On 8 December 2023, the Plaintiff made an application to vary the costs order nisi. The Judge rejected that application by a decision dated 23 January 2024.

THE PRESENT APPEAL

20.In the Plaintiff’s 14-page Notice of Appeal dated 20 December 2023, the Plaintiff seeks (i) a declaration that the Settlement Agreement has been repudiated by the Defendant, (ii) an order that the Defendant do pay to the Plaintiff “the remaining claim items” of the 1^st Labour Tribunal Case, and (iii) an order that the Defendant do pay to the Plaintiff the balance of the salary, gratuity and “other associated benefits” under the 2^nd Employment Agreement up to the full completion of the Office Development. These are not the same relief sought by the Plaintiff in his Statement of Claim.

21.A total of 13 grounds of appeal have been advanced by the Plaintiff in Notice of Appeal. They will be considered below.

22.The Plaintiff also raises, in his affirmation of 4 March 2024, a jurisdictional challenge, contending that the Judge erred in law in giving a judgment in relation to the Plaintiff’s claims which fell within the exclusive jurisdiction of the Labour Tribunal[1].

THE PRESENT APPLICATION

23.On 15 January 2024, the Defendant took out a summons, supported by an affirmation of Lai Yu Leung (“Lai”) filed on the same date, seeking to strike out the Plaintiff’s Notice of Appeal, or alternatively, security for costs of the appeal. The Defendant contends that it is plain and obvious that all 13 grounds of appeal are “totally misconceived and without any merit, not capable of reasoned argument, without foundation, cannot possibly succeed and … lack bona fides”. Alternatively, if the Defendant is unsuccessful in its strike out application, the Defendant asks for security for costs of the appeal to be provided by the Plaintiff.

24.The Plaintiff opposes the Defendant’s application. The grounds of opposition are set out in his affirmation dated 4 March 2024 and Skeleton Argument lodged on 15 April 2024. We shall deal with the major grounds of opposition raised by the Plaintiff below.

DISCUSSION

(i)  Applicable principles

25.The legal principles concerning the jurisdiction of the Court of Appeal to strike out a notice of appeal are well established, and have been summarised in Leung Chung Lan Lorraine v Hang Seng Bank Ltd [2019] HKCA 1408:

“[34] The Court of Appeal has inherent jurisdiction to strike out a notice of appeal where an appeal is plainly not competent (Aviagents Ltd v Balstravest Investments Ltd [1966] 1 WLR 150 at 154B to E, 155D to G; Ng Shek Po & Anr v Director of Lands [1996] 4 HKC 616 at 619D to E), or where the appeal is frivolous, vexatious or an abuse of the process of the court (Burgess v Stafford Hotel Ltd [1990] 1 WLR 1215 at 1220A to G, 1221B to D; Fok Siu Wing v Hong Kong Housing Authority [2016] 1 HKLRD 238 at [6], [11] to [13]). In the case of the latter, the inherent jurisdiction would be exercised on precisely the same basis as if Order 18 rule 19 strictly applied to notices of appeal (Burgess v Stafford Hotel Ltd at 1221D).

[35] The jurisdiction to strike out a notice of appeal should be confined to clear and obvious cases. It should not be utilised, and an order to strike out should not be made, where any extensive inquiry into the facts is likely to be necessary (Burgess v Stafford Hotel Ltd at 1222C to D).”

26.Where the proceedings are hopeless and without foundation in law, the court ought not to be slow to exercise the power to strike out to protect a party from being harassed and put to expenses by frivolous, vexatious or hopeless claims (see Hong Kong Civil Procedure 2024, Vol 1, §18/19/15).

(ii)  Overview

27.The various grounds of appeal advanced by the Plaintiff boil down to his contention that his employment by the Defendant, whether under the 1^st Employment Agreement or the 2^nd Employment Agreement, should continue until the completion of the relevant construction project, and any termination or non-renewal of the Plaintiff’s employment prior to the completion of the relevant construction project is wrongful.

28.In our view, it is beyond peradventure that the 1^st Labour Tribunal Case, and thus any claims arising out of the 1^st Employment Agreement, were fully and finally settled by the Settlement Agreement. We can see no basis for the Plaintiff to now seek to re-open the 1^st Labour Tribunal Case after he has obtained leave from the Labour Tribunal to withdraw the 1^st Labour Tribunal Case.

29.The Judge rightly focused on the terms of the 2^nd Employment Agreement. The Judge’s finding that it is a fixed term contract which has come to an end by effluxion of time is plainly correct. None of the grounds of appeal advanced by the Plaintiff to challenge the Judge’s decision is reasonably arguable or has merit. Properly analysed, the Plaintiff’s grounds of appeal are mostly based on a misreading of the Judgment, or misunderstanding of the law.

30.In what follows, we shall first address the jurisdictional challenge raised by the Plaintiff, before turning to his grounds of appeal, followed by his grounds of opposition to the Defendant’s applications.

(iii)  Jurisdictional challenge

31.In his jurisdictional challenge, the Plaintiff contends that his claims against the Plaintiff are within the exclusive jurisdiction of the Labour Tribunal under s 7 of the Labour Tribunal Ordinance (Cap 25) and outside the jurisdiction of the High Court. This contention is unsustainable because the Presiding Officer was entitled, under s 10 of the Labour Tribunal Ordinance, to decline jurisdiction and transfer the Plaintiff’s claims to the Court of First Instance for determination.

(iv)  Grounds of appeal

32.The 13 grounds of appeal raised in the Notice of Appeal can broadly be grouped into the following six categories:

(1)  Ground 1 challenges the Judge’s finding that the 1^st Employment Agreement was a fixed term contract, and contends that the Judge erred in failing to find that the 1^st Employment Agreement would extend or continue until the completion of Phase 4 of the Resort Development.

(2)  Grounds 2, 3 and 7 challenge the Judge’s finding that the 2^nd Employment Agreement was a fixed term contract and had come to an end by effluxion of time. The Plaintiff argues that the Judge erred in:

(a)  taking the view that that the 2^nd Employment Agreement provided expressly for an “end date” or “expiry date”; and

(b)  failing to properly consider Clause 2 of the 2^nd Employment Agreement, which made an express reference to the Office Development, and hold that the end date of the 2^nd Employment Agreement was the completion date of the Office Development.

(3)  Grounds 4 and 12 contend that the Judge erred in law in failing to consider s 72B of the Employment Ordinance (Cap 57), which, according to the Plaintiff, protects an employee who gives evidence in employment proceedings from being terminated “within 12 months”, and failing to hold that the service of Termination Notice was invalid.

(4)  Grounds 5 and 6 contend that the Judge erred in holding that the matters raised in the Plaintiff’s submissions (including the authorities submitted) were irrelevant and/or inadmissible, and further that the Judge failed to give reason for such holding.

(5)  Grounds 8 to 10 and 13 contend that the Judge erred in failing to properly consider the applicable case law and statutory provisions of the Employment Ordinance and the law of Macau in relation to (i) the implied duty of mutual trust, and (ii) the termination or non-renewal of the Plaintiff’s employment under the 2^nd Employment Agreement.

(6)  Ground 11 relates to the deduction of the sum of HK$164,450 from the end-of-contract gratuity payment under Clause 4(v) of the 2^nd Employment Agreement. The Plaintiff contends that the Judge erred in failing to find that the deduction was invalid because it was contrary to s 70 of the Employment Ordinance and was further not supported by any consideration.

33.In respect of Ground 1 of the Notice of Appeal, the Plaintiff makes 2 main points. First, the Plaintiff complains that the Judge erred in allowing the Defendant to withdraw from calling Mr So as a witness to give evidence at the trial. According to the Plaintiff, Mr So is an important witness who made the Oral Agreement with the Plaintiff in an interview attended only by the two of them. The withdrawal of Mr So as a witness has led to the rejection of the Oral Agreement. In our view, the Judge was correct to take the view that it was primarily a matter for a party to decide whether to call any particular witness to give evidence, subject to the possibility of an adverse inference being drawn against the party for failing to call a witness in an appropriate case. In this case, it is plain from the Judgment that the Judge disbelieved the Plaintiff’s evidence and proceeded to determine the issue of the Oral Agreement with reference to, amongst other matters, the terms of the 1^st Employment Agreement, which were clear and self-explanatory. The Judge took the view that Mr So was an unimportant witness[2]. We consider that it was open to the Judge to take that view. The Judge was also entitled to reject the Oral Agreement on the basis that it was inconsistent with the express terms of the 1^st Employment Agreement[3].

34.Second, the Plaintiff complains that the Judge failed to take into account (i) the express terms of an interrelated employment contract with GEG for automatic extension of the term of the Plaintiff’s employment; (ii) the stringent employment protection under the law of Macau in relation to the termination of oversea employees; (iii) the express reference to the completion of a construction project in Clauses 2 and 3 of the 1^st Employment Agreement; and (iv) the usual industry practice that employment contracts in relation to construction projects do not have a fixed term because the completion date of a construction project is unfixed and may vary according to the circumstances (in reliance upon Yeung Wai Hon and Others v Ho & Partners Architects Engineers & Development Consultants Ltd, HCLA 6/2002, (28 May 2022)). As rightly held by the Judge, these matters are irrelevant and/or inadmissible[4]. The Plaintiff’s reliance on Yeung Wai Hon is misplaced. Whether the Plaintiff’s 1^st Employment Agreement with the Defendant is a fixed term contract depends on the actual terms of the agreement. There cannot be a general industry practice on such an issue.

35.In respect of Grounds 2, 3 and 7, the Plaintiff has either misread the Judgment in relation to the Judge’s interpretation of the relevant terms of the 2^nd Employment Agreement, or misread the relevant terms of the 2^nd Employment Agreement. It was not the Judge’s holding at §45 of the Judgment that the 2^nd Employment Agreement contained the express wordings “end date” or “expiry date”. The Judge’s holding is that the date of “27 July 2020” was expressly stated in the 2^nd Employment Agreement to be the date on which the Plaintiff’s employment would come to an end (ie an “end date” of the Plaintiff’s employment.). On the facts of this case and upon a fair reading of the 2^nd Employment Agreement, Clauses 1 and 2 thereof simply cannot be construed or interpreted to mean that the Plaintiff’s employment with the Defendant should continue or be renewed until the completion of the Office Development.

36.In respect of Grounds 4 and 12, the Plaintiff appears to argue that the Defendant was prohibited by s 72B of the Employment Ordinance from issuing the Termination Notice dated 2 June 2020 and terminating his employment on 27 July 2020 because the settlement of the 1^st Labour Tribunal Case occurred only 11 months ago in August 2019. On the facts of this case, it is clear that the 2^nd Employment came to an end by effluxion of time, and not because of any of the reasons referred to in s 72B(1) of the Employment Ordinance. That section is irrelevant to, and has no bearing on, the present case.

37.In respect of Grounds 5 and 6, it is well established that a judge is not required to consider and deal with every single issue raised by a party in his judgment. He needs only to deal with the relevant and substantial issues, and explain why he has come to his decision. Here, the Judge expressly stated at §§33 and 34 of the Judgment that he had considered all the matters raised and authorities cited by the Plaintiff in his written final submissions and reply submissions. Looking at the reasons given by the Judge in the Judgment, we are satisfied that he has sufficiently dealt with all major and relevant issues in the case.

38.In respect of Grounds 8 to 10 and 13, the Plaintiff argues that:

(1)  the Judge failed to consider the legal requirement on the Defendant to give reason for termination of his employment under s 32K of the Employment Ordinance having regard to the Defendant’s alternative case raised in the Defence that the Plaintiff’s employment under the 2^nd Employment Agreement was terminated for valid reasons[5];

(2)  the Judge erred in applying Lam Siu Wai [2021] 5 HKLRD 30 because it is an employment case containing a special termination clause;

(3)  the Judge erred in applying the first instance judgment of Chu J (as she then was) in Ko Hon Yue (HCA 3494/2003, unreported, 4^th August 2008), there being opposite findings in the judgment of the Court of Final Appeal in that case (FACV 8/2011); and

(4)  the Judge failed to apply the implied duty of mutual trust and confidence in relation to the 2^nd Employment Agreement under the employment law of Macau, which applied to protect the Plaintiff as an oversea employee from wrongful dismissal by the Defendant because he was living in Macau when he signed the agreement.

39.These arguments have no foundation in law and/or fact:

(1)  The present case is not a case of dismissal of an employee, or variation of an employment contract. The Plaintiff’s employment under the 2^nd Employment Agreement came to an end upon the expiry of the term of employment. It was not necessary for the Judge to consider the Defendant’s alternative case, and section 32K did not arise for consideration.

(2)  Also, as pointed out by the Judge, it is well-established that the contractual right to terminate an employment (on the part of either an employer or employee) can be exercised unreasonably or capriciously, so long as the right is exercised in accordance with the contract, and the implied duty of mutual trust and confidence cannot be applied to water down an employer’s rights to terminate the employment of a worker without cause by invoking the notice provisions, contractual and/or statutory (Lam Siu Wai, at §§27 and 30). It matters not that Lam Siu Wai is an “employment case”, whereas the present case is a “settlement case” (as contended by the Plaintiff). We see no reason why the principles established in Lam Siu Wai are not applicable to the present case.

(3)  As for the challenge to the Judge’s reliance on Ko Hon Yue, the statement of principles by Chu J (as she then was), at §171 (referred to by the Judge at §62 of the Judgment), is in line with the legal principles stated by Anthony Chan J in Lam Siu Wai. The judgment of the Court of Final Appeal in Ko Hon Yue has no impact on the said statement of principles by Chu J.

(4)  Quite apart from the fact that the Plaintiff has failed to show the relevance of Macau law in the present case, there was no admissible evidence of Macau law before the Judge.

40.In respect of Ground 11, the end-of-contract gratuity payment is not a right, benefit or protection conferred upon the Plaintiff as an employee under the Employment Ordinance. The deduction of HK$164,450 from the gratuity payment is not caught by s 70 of the Employment Ordinance, which has no relevant application to the present case. The contention that the deduction of HK$164,450 is not enforceable because it is not supported by any consideration is unarguable, because the Defendant’s right to make the deduction is part of the contract contained in the 2^nd Employment Agreement.

(v)  Grounds of opposition

41.We now turn briefly to the main grounds advanced by the Plaintiff to oppose the Defendant’s strike out application. None of them has merit:

(1)  The Plaintiff’s contention that his appeal cannot be struck out due to the provisions of the Employment Ordinance and/or the Labour Tribunal Ordinance is based on his misunderstanding of the law, and has no valid foundation.

(2)  There is no basis for the Plaintiff’s argument that the 2^nd Employment Agreement and the Settlement Agreement are not “bona fide contracts”, or the Defendant has misled the court by not disclosing other employment agreements or settlement agreements that are “bona fide”. The Defendant’s employment contracts with other employees cannot affect the proper interpretation of the 2^nd Employment Agreement entered into between the Defendant and the Plaintiff.

(3)  Practice Direction 19.1 applies to the striking out of pleadings, not a notice of appeal. As a matter of fact, by a letter dated 2 January 2024, the legal representatives of the Defendant informed the Plaintiff of the Defendant’s intention to take out the present application[6]. The Plaintiff replied by an email of the same date that he would appeal this matter to the Court of Final Appeal unless the Defendant agreed to re-employ him on terms proposed by him[7]. The Plaintiff’s reliance on Practice Direction 19.1 to oppose the Defendant’s strike out application is misconceived.

(4)  There is no application before this Court for any proposed amendment to the Plaintiff’s Notice of Appeal. We cannot see any basis in the Plaintiff’s argument that his grounds of appeal are curable by amendment.

(5)  The Plaintiff’s complaint that the Affirmation of Lai should be rejected as it was filed out of time is misguided, because the present application was taken out by the Defendant, and the 14-day period mentioned at §36(2) of Practice Direction 4.1 applied to the Plaintiff as the opposing party, not the Defendant as the applicant. The Affirmation of Lai was not filed out of time, and there is no basis to expunge it from the present proceedings.

42.In all, it is plain and obvious that the Plaintiff’s grounds of appeal are doomed to fail, and his appeal is frivolous, vexatious and/or an abuse of the court’s process. We see no reason why the Notice of Appeal should not be struck out in the present case.

43.In view of the above conclusion, it is not necessary for us to consider the Defendant’s alternative application for security for costs.

DISPOSITION

44.The Plaintiff’s Notice of Appeal dated 20 December 2023 is struck out with costs to the Defendant, to be summarily assessed. We decline to order the Defendant’s costs to be assessed on an indemnity basis.

45.The Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the Defendant’s Statement of Costs for Summary Assessment dated 5 April 2024 within 14 days from the date of this judgment.

The Plaintiff, acting in person

Mr But Sun Wai, instructed by Withers, for the Defendant