Li Qing v. Sfund International Investment Fund Management Ltd
Read the full judgment text of HCLA 5/2024 on BabelCite. This HCLA judgment was delivered on 31 October 2024.
1. On 8 January 2024, after trial, the Presiding Officer Ms Minnie Wong (the “ Presiding Officer ”) allowed the claim brought by the claimant (“ C ”) against the defendant (“ D ”) for salaries and allowances in the total sum of HK$1,541,953.05 (the “ Trial Decision ”). On 6 February 2024, the Presiding Officer dismissed D’s application for review (the “ Review ”, “ Review Hearing ”, and “ Review Decision ”). By Form 14 dated 23 February 2024, D sought leave to appeal against those decisions on t
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HCLA 5/2024 [2024] HKCFI 2629 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE LABOUR TRIBUNAL APPEAL NO 5 OF 2024 (ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1818 OF 2023) __________________ BETWEEN
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__________________ JUDGMENT __________________ Introduction 1.On 8 January 2024, after trial, the Presiding Officer Ms Minnie Wong (the “Presiding Officer”) allowed the claim brought by the claimant (“C”) against the defendant (“D”) for salaries and allowances in the total sum of HK$1,541,953.05 (the “Trial Decision”). On 6 February 2024, the Presiding Officer dismissed D’s application for review (the “Review”, “Review Hearing”, and “Review Decision”). By Form 14 dated 23 February 2024, D sought leave to appeal against those decisions on the intended grounds set out therein. By summons of 17 April 2024, D sought leave to amend those proposed grounds. On 18 April 2004, having heard Mr Timothy Lam, counsel for D, I granted D leave to amend its Form 14. I further granted D leave to appeal on those amended grounds (the “Amended Grounds”). 2.This is the substantive hearing of D’s appeal. Mr Lam continued to appear for D. Mr Vincent Chiu appeared for C. Core factual background 3.C is a Mainland citizen. 4.D is a Hong Kong company. It is wholly owned indirectly by 廣州產業投資基金管理有限公司 (“廣投基”) (through 廣州匯垠天粵股權投資基金管理有限公司 (“匯垠天粵”) and 廣州科技金融創新投資控股有限公司). 5.C was a former employee of D, initially via an employment agreement of January 2017 as D’s Chairman, and later as its General Manager. C was also a director of D. 6.The employment agreement prevailing at the time when the present disputes arose was dated 11 January 2019 (the “Employment Agreement”), as supplemented by a supplemental agreement of September 2020 (the “2020 Supplemental Contract”). 7.The Employment Agreement relevantly contained the following terms:
8.In March 2022, C tendered a letter (the “Resignation Letter”) which bore the heading “辭職信”. Immediately beneath that heading was D’s name. The Resignation Letter was dated 3 March 2022. C signed as the “辭職人”. D was stated to be his “工作單位”. It was addressed to “黄志丹董事長”. It stated inter alia that:
9.By a notice signed by C, he also with effect from 2 March 2022 resigned as a director of D. 10.A notice was subsequently issued by “中共廣州產業投資基金管理有限公司委員會” (the “Acceptance Notice”). It bore the seal of that committee. It was entitled “廣州基金黨委關於[C]同志職務任免的通知”. It read:
11.On 9 March 2022, D issued a letter to the Immigration Department and stated that:
12.Also on 9 March 2022, D’s board of directors passed a resolution resolving inter alia that:
13.C started a new employment with a third party on 23 March 2022 (the “New Employment”). 14.More should be stated about the New Employment:
15.C was only paid under the Employment Agreement up to 3 March 2022. 16.In June 2023, C started LBTC 1818/2023 against D. In gist, he claimed that the Resignation Letter was only a notice he tendered pursuant to Clause 10.1 of the Employment Agreement, and that he had continued to carry out his duties even beyond the 3-month notice period, until the new General Manager reported duty on 15 September 2022. 17.D denied liability. In its Defence, Counterclaim and Witness Statement, it stated that C unilaterally terminated the Employment Agreement on 3 March 2022 when C issued the Resignation Letter. At §12 thereof, D said that:
On that basis, D counterclaimed for damages, quantumised as 3 months’ payment in lieu. The trial and the Review 18.The core issues before the Presiding Officer essentially were how and as a result when the employment relationship between C and D was terminated. 19.At §14 of her Reasons for Decision dated 22 March 2024, the Presiding Officer identified the issues as follows:
20.Having considered the evidence, the Presiding Officer found and concluded at §§37-39 that:
21.For those reasons, the Presiding Officer awarded C salaries and allowances in the total amount which I have stated above. 22.As I have mentioned above, D’s application for Review was also subsequently dismissed. In respect of the New Employment, the Presiding Officer said as follows:
The Grounds of Appeal 23.The Grounds of Appeal in gist, and as summarised by Mr Lam, are as follows:
Parties’ stances on appeal 24.Mr Lam submits that:
25.Mr Chiu submits, at §§3 and 4 of his written submission, inter alia, that (emphasis being original):
26.In effect, Mr Chiu does not seek to resist the appeal or to uphold the Trial Decision. The submissions he has made relate solely to the issue as to whether there should be a retrial. Ground 1 27.For the following reasons, I am of the view that Ground 1 has been made out:
Ground 2 28.Section 20(3) of the Labour Tribunal Ordinance (Cap. 25) provides that:
29.The nature of that duty to investigate has been discussed in a number of cases, which include Chan Suk Bing Angie v Harbour Phoenix Ltd [1992] 2 HKC 459, per Jerome Chan J at 462A-D and 465 C-H, and Leung Wan Kee Shipyard Ltd v Lik Shau Foo [1995] 3 HKC 229, per Waung J at 233I-234A. The heavy work-load of the Labour Tribunal is readily acknowledged. But this duty to investigate matters considered relevant to the claim is a statutory one, and arises irrespective of whether any of those matters “has been raised by a party”. It is an important duty that flows from the informal nature of the hearing, the prohibition of legal representation, and the inquisitorial nature of the proceedings. 30.In considering the termination of the employment relationship between the parties, the Presiding Officer concentrated upon Clause 10.1(d). She put forward the notion of variation by conduct. She further put forward the alternative notion of withdrawal of the Resignation Letter by C. Perhaps affected by the way D ran its case during the trial (unilateral termination by C, with a counterclaim against C for 3 months’ payment in lieu), the Presiding Officer had not investigated the scenario of termination by mutual agreement. She did not do so even during the Review when the Explanatory Letter was disclosed. Whilst the way D ran its case should be noted, that does not relieve the Presiding Officer from investigating the question of termination by mutual agreement, which was clearly relevant to parties’ cases. 31.For the above reasons, I am of the view that Ground 2 has also been made out. Ground 3 32.Given the way D ran its case at trial, and given the way the case was investigated and considered, I am not persuaded that Ground 3 has been made out. Whether parties’ employment relationship had been terminated by mutual agreement pursuant to clause 10.1(a) is facts-sensitive. I heed the observations of Queeny Au-Yeung J in 洪輝 at §12, applying 馮浩嵐 訴 威達製品有限公司及另一人 (HCLA 6-7/2011, 14 October 2011), that:
On the materials before me, I am not satisfied that I can at this stage substitute a finding of termination by mutual agreement on 3 March 2022. I cannot say that that conclusion is the true and only reasonable one. Nor is it in my view fair to C for this Court at this stage to do so. Conclusion 33.For the reasons set out above, I allow the appeal. Whether to order a retrial 34.Also for the reasons set out above, and in particular those dismissing Ground 3, I have formed the view that the case should be remitted to the Labour Tribunal for retrial before another Presiding Officer. During the hearing, Mr Lam informed this Court that he would not resist any order remitting the matter back for a retrial. I have also considered Chok Kin Ming v Equal Opportunities Commission [2017] 2 HKLRD 521. The observations of G Lam J (as he then was) at §70 also support this course be taken. Orders and Directions 35.I make the following Orders and Directions:
Costs 36.Mr Lam for D seeks costs of and incidental to the application for leave to appeal and the substantive appeal, to be summarily assessed. 37.Mr Lam relies on a number of decisions. They include Yu Tai Keung Tim & Anor v Billion Town Corporate Consultants Ltd [2022] 6 HKC 239, Lai Wo Heung v Cheung Kong Fur Fty Co Ltd 1 HKLRD 959, Pang Hong v Pro-Centric Group Ltd (HCLA 85/2005, 20 September 2006), and Pak Wang Kwan v Associated Tourist Coach Ltd (HCLA 7/2001, 30 November 2001). They are relied upon as examples showing that costs of an appeal may still follow the event despite any remitter. Yu Tai Keung is further relied upon for the proposition that the appeal court may order costs to follow the event even though the respondents have not contributed in any way to the mistake of the adjudicator (§77, per Queeny Au-Yeung J). 38.Mr Lam distinguishes Ali Shoukat v Hang Seng Bank Ltd (HCLA 112/2004, 20 June 2005). In that case, Hang Seng Bank lost before the Labour Tribunal, and was on appeal “wholly successful and was utterly without fault” (§21). Mr Lam points out that that case concerned a claim by a security guard against a bank, where the amount in dispute was small, so that the Court’s exercise of discretion in making no order as to costs may be understood in that context. The sentiments expressed by To J at §21 should be noted, that justice may be tempered with mercy. I note also the learned Judge’s observations at §§22 and 23, that:
39.On the facts of the case, Mr Lam submits that C during the trial concealed from the Presiding Officer his New Employment on 23 March 2022. Even during the Review Hearing, he was evasive when being asked about the New Employment, by claiming that he could not recall. Mr Lam submits that such conduct should be reproached. He submits that there is no reason why costs of the appeal should not follow the events. 40.Mr Chiu originally submits that the costs of the appeal should either be in the cause of the retrial, or that there be no order as to costs. He ultimately submits that the latter should be the appropriate order. He relies on Chok Kin Ming wherein G Lam J, despite having allowed the defendant’s appeal and ordered a remitter, ordered that there be no order as to costs. It is noted that in making that costs order, the learned Judge had regard to the considerations taken into account in Ali Shoukat. Mr Lam further submits that D’s conduct, and in particular the way it ran its case, had also contributed to the outcome. He also submits that what C did was simply to lay the facts before the Presiding Officer and sought a ruling from her as she deemed fair. 41.I have also considered the correspondence between C and D in August 2024. C first proposed (on 7 August 2024) that the appeal be allowed, that there be a remitter, with no order as to costs. D did not accept the proposal, and counter-offered (on 27 August 2024) that the appeal be allowed with a remitter, but with costs to D. The next day, C rejected that counter-offer, and stated that “Your offer is simply unrealistic and unreasonable, and it has been rejected by our client outright (also, on the strength of Counsel too). So please focus on the appeal and send us the Hearing Bundles as early as practicable”. There was no indication that C, subject to the issue of remitter, did not intend to oppose the appeal. That was only made clear when Mr Chiu lodged his written submissions in opposition on 19 September 2024. 42.I have considered all the factors urged upon me. I am of the view, for the following reasons, that C shall bear the costs of and occasioned by the appeal (including the application for leave):
43.For the above reasons, I order that C shall bear the costs of and occasioned by the appeal (including the application for leave), to be summarily assessed. 44.For the purpose of summary assessment, I direct that D shall lodge and serve its statement of costs within 14 days from the date hereof, C to lodge and serve its statement of objections within 14 days of receipt, and P to lodge and serve it reply within 7 days afterwards. The summary assessment will be conducted on the papers.
Mr Vincent Chiu, instructed by Siao, Wen & Leung, for the Claimant (Respondent) Mr Timothy Lam, instructed by ONC Lawyers, for the Defendant (Appellant) |
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