Ranger F & B Service Ltd v. Lo Yee Nok

DCCJ 3216/2022

[2026] HKDC 947

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3216 OF 2022

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.During the period between 1 March 2017 and 27 May 2022, the Defendant (“Mr Lo”) was under employment of the Plaintiff (“Ranger”). By this action, Ranger claims against Mr Lo damages for breach of various common law duties. Mr Lo, by the counterclaim, claims the following reliefs against Ranger (“Counterclaim”):

(1) A sum of HK$58,094 being the total outstanding wages for the period from 1 June 2020 to 27 May 2022;

(2) Interests of the sum of HK$58,094 pursuant to section 50 of the District Court Ordinance (Cap 336) and section 25A of the Employment Ordinance (Cap 57); and

(3) Further or alternatively, the sum of HK$20,000 being the amount of the dishonoured cheque drawn by Ranger, as a debt owed by Ranger to Mr Lo in reliance on section 47 of the Bills of Exchange Ordinance (Cap 19).

2.The trial of the aforesaid disputes is set to commence on 26 May 2026, with 3 additional days reserved.

3.On 19 May 2026, Ranger, by the summons (“Summons”), applies for an Order that Mr Lo’s Counterclaim be struck out pursuant to O 18, r 19(1)(a) and/or (d) of the Rules of the District Court (Cap 336H).

4.The precise ground upon which Ranger relies for the Summons was set out in Ranger’s written supplemental opening submissions of 21 May 2026:

“2. The sole ground for the Application is that the Counterclaim falls within the exclusive jurisdiction of the Labour Tribunal, as the present proceedings were not transferred therefrom. The initial Labour Tribunal proceedings commenced by the Defendant against the Plaintiff (LBTC 2155/2022) were transferred to the District Court as another proceedings (DCCJ 3985/2022), and were discontinued rather than consolidated with the present proceedings (DCCJ 3216/2022).

16. … the Counterclaim in the present proceedings, which falls within the exclusive jurisdiction of the Labour Tribunal, was not transferred therefrom, and is therefore defective for want of jurisdiction. On the other hand, the LT Proceedings[1] were transferred to become the Other DC Proceedings[2] and then discontinued. In the absence of consolidation of the Other DC Proceedings with the present proceedings, the Order of the Labour Tribunal that the LT Proceedings be heard together with the present proceedings is unfortunately futile.”

5.In gist, Ranger submits that this Court lacks jurisdiction to hear and determine the Counterclaim raised in this action (“Jurisdictional Challenge”).

Salient procedural history

6.It is important to set out the salient procedural history to understand Ranger’s Jurisdictional Challenge.

7.On 19 August 2022, Ranger by writ commenced this action against Mr Lo.

8.On 1 September 2022, Mr Lo commenced legal proceedings in the Labour Tribunal (ie LBTC 2155/2022) claiming against Ranger for outstanding wages in the sum of HK$61,000-odd (the “Wages Claim”).

9.On 26 September 2022, Mr Dominic Pun, Presiding Officer of the Labour Tribunal, heard the Wages Claim. Upon notice of the existence of this action and by consent of the parties, the Presiding Officer ordered that the Wages Claim be transferred to this Court and be dealt with together with this action (“Transfer Order”). The exact terms of the Transfer Order are as follows:

“ 裁斷/命令

1. 訴訟雙方同意，申索人 [ie the Defendant herein] 對被告公司 [ie the Plaintiff herein] 之（A）項：欠薪及（B）項：Interest申索轉介至區域法院與DCCJ 3216/2022一併審理。

2. 是日聆訊訟費保留，所保留之訟費歸區域法院決定。”

10.Following the Transfer Order, the Wages Claim was transferred to this Court, and a different case number (ie DCCJ 3985/2022) was assigned to it.

11.On 20 October 2022, Ranger filed the Statement of Claim for this action.

12.On 16 February 2023, Mr Lo filed his Defence and Counterclaim for this action. He made his Counterclaim against Ranger.

13.Subsequently, further pleadings were filed, and the parties also amended their pleadings. They are, however, immaterial to my determination of the Summons.

14.It is apparent from the above procedural history that from 16 February 2023 onwards Mr Lo claimed against Ranger for his outstanding wages and interest in two actions of this Court, namely DCCJ 3985/2022 and this action (ie the Counterclaim).

15.On 18 January 2023, Madam Registrar Soong, in the absence of the parties, gave directions that the parties had to take out summonses if they intended to seek directions on how the two actions (ie DCCJ 3985/2022 and this action) were to be carried on.

16.By the Order of 20 April 2023, Madam Registrar Soong granted leave to Mr Lo to discontinue DCCJ 3985/2022 (“Discontinuance Order”).

Ranger’s Case

17.In advancing the Jurisdictional Challenge, Ranger submits that Mr Lo’s Counterclaim herein is not the one originally commenced in the Labour Tribunal (ie the Wages Claim). It argues that the Wages Claim which had originally been commenced in the Labour Tribunal and subsequently transferred to this Court has been discontinued. Thus, the Counterclaim is brought in breach of section 7 of the Labour Tribunal Ordinance (Cap 25) (“LTO”), which confers exclusive jurisdiction on the Labour Tribunal over claims specified in the Schedule to the LTO.

18.Ranger places heavy reliance on Acumen Hong Kong Limited v Kwan Pak Kei Lawton [2023] HKCFI 2038 (“Acumen”). There, the employee (as the defendant in the High Court action) by counterclaim claimed against the former employer for payments in lieu of notice. Thereafter, the employee made the same claim in the Labour Tribunal, which subsequently ordered the said claim be transferred to the Court of First Instance. The learned Master held that the employee’s counterclaim raised in the High Court action was tainted with jurisdictional defect for it fell within the exclusive jurisdiction of the Labour Tribunal; and that the transfer order of the Labour Tribunal could not cure the jurisdictional defect of the counterclaim. In rejecting the employee’s submissions, he held:

“Despite Mr Hon’s skilful submissions, it does not appear to me this is the correct analysis. I am of the view that:-

(1) The Transfer Order only provides that the LBTC Proceedings be transferred to the CFI of the High Court. It does not impact on, and is incapable of impacting on, the Counterclaim in the present Action. I simply cannot see how a subsequent order (ie the Transfer Order) made by a tribunal (ie the Labour Tribunal) is capable of affecting a set of pre-existing proceedings in the CFI (ie the Counterclaim in the present action).

(2) More fundamentally, there is no room to conflate the Defendant’s Counterclaim in the present Action with the Defendant’s claim in the LBTC Proceedings (which is now the subject matter of HCA 713/2013).

(3) Although their substance is identical, the reality is that there are two different sets of proceedings:

(a) The Defendant’s Counterclaim in the present Action was not transferred from the Labour Tribunal at all. In light of the authorities mentioned above, it must be defective as the CFI has no jurisdiction at all.

(b) On the contrary, the claim under the LBTC Proceedings has been duly transferred to the CFI from the Labour Tribunal pursuant to section 10 of the Labour Tribunal Ordinance. As pointed out, pursuant to the Transfer Order made by the Labour Tribunal, the claim under the LBTC Proceedings is now the subject matter of HCA 713/2013.”

19.As a result, the learned Master struck out the employee’s counterclaim for want of jurisdiction.

Mr Lo’s Case

20.Mr Lo argues that Ranger has been guilty of delay in raising the Jurisdictional Challenge. He submits that on this ground alone this Court should dismiss the Summons.

21.As to the substantive merits of the Jurisdictional Challenge, Mr Lo places reliance on the Transfer Order, which expressly provides that the Wages Claim is to be dealt with together with this action. Mr Lo submits that by virtue of the Transfer Order, this Court has assumed or has been conferred jurisdiction over the Wages Claim. Mr Lo submits that it is wholly artificial to treat DCCJ 3985/2022 and this action as completely distinct and standalone actions.

22.Against the aforesaid background, Mr Lo submits that the Discontinuance Order was at most “… a mere technicality that fails to perfect the Transfer cum consolidation Order and, hence, could not go to the root (ie jurisdiction) …”.

23.With respect to Acumen, Mr Lo distinguishes it on grounds that the employee therein asked the court to give retrospective effect of the transfer order to cure the jurisdictional defect of the counterclaim raised in the High Court action. Here, the Counterclaim was raised only after the Transfer Order.

24.Mr Lo further submits that Ranger’s prolonged silence gave rise to an estoppel barring it from making the Jurisdictional Challenge.

Discussion

25.Sections 7 and 10 of the LTO provide:

Section 7 Jurisdiction of tribunal

“(1) The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2) Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

…”

Section 10 Declining Jurisdiction

“(1) The tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction.

(2) The tribunal may, when it declines jurisdiction under subsection (1), transfer the claim to the Court of First Instance, the District Court or the Small Claims Tribunal, in such manner as may be prescribed.

…”

26.Paragraph 1 of the Schedule to the LTO provides:

“A claim for a sum of money, whether liquidated or unliquidated, which arises from –

(a) the breach of a term, whether express or implied …, of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap 78) applies;

…”

27.The Counterclaim, being a claim for a sum of money which arises from a breach of the employment contract between Ranger and Mr Lo, falls within Paragraph 1 of the Schedule to the LTO.[3]

28.This is, however, not the end of the matter. One must consider what has been transferred by the Labour Tribunal to this Court by the Transfer Order pursuant to Section 10 of the LTO. In doing so, one must consider what the word “claim” refers to in Sections 7 and 10 of the LTO.

29.While Section 2 of the LTO provides that the word “claim” “includes a proceeding before the tribunal between a claimant and a defendant”, it offers little guidance in construing the word “claim” as used in Sections 7 and 10 of the LTO”.

30.In Estinah v Golden Hand Indonesian Employment Agency (unreported, HCSA 6/2001, 21 August 2001), Kwan J distinguished a “claim” from a “cause of action” in the context of Section 7 of the LTO:

“32. … Section 7(1) of Cap 25 provides that the Labour Tribunal shall have jurisdiction to hear ‘the claims’ specified in the Schedule. The Schedule makes provisions for various types of claims for this purpose. A ‘claim’ is not the same thing as a ‘cause of action’, the latter denotes the factual or legal basis out of which a claim arose. Paragraph 1 [of the Schedule to the LTO] provides for a claim for a sum of money which ‘arises from’ the breach of a term of a contract of employment, the breach of a term of a contract of apprenticeship, and the failure of a person to comply with the Employment Ordinance or the Apprenticeship Ordinance. I do not think the wording of paragraph 1 or of the other paragraphs in the Schedule would warrant a requirement that the entire legal or factual basis of a claim should be spelled out. …”

31.In Haydon v Lo & Lo [1997] 1 WLR 198,[4] the Privy Council rejected the proposition that a separate claim was made whenever a separate cause of action arose creating a liability owed to the claimant. Lord Lloyd, who gave the judgment of the Privy Council, indicated that the word “claim” could bear two different meanings in ordinary usage, namely “a claim for something” or “a right to something” (at 204A-B). His Lordship then approvingly referred to Devlin J’s interpretation of the word “claim” in West Wake Price & Co v Ching [1957] 1 WLR 45 at 205F-206A:

“I think that the primary meaning of the word ‘claim’ – whether used in a popular sense or in a strict legal sense – is such as to attach it to the object that is claimed; and is not the same thing as the cause of action by which the claim may be supported or as the grounds on which it may be based.”

“If you say of a claim against a defendant that it is for £100, you have said all that is necessary to identify it as a claim; but if you say of it that it is for fraud or negligence, you have not distinguished it from a charge or allegation. In particular, if you identify a claim as something that has to be paid … it must be something that is capable of separate payment: you cannot pay a cause of action. It follows, I think, that if there is only one object claimed by one person, then there is only one claim, however many may be the grounds or the causes of action which can be raised in support of it …”

32.In my view, the word “claim”, in the context of Sections 7 and 10 of the LTO, refers to a claim for something. It is consistent with the plain reading of the Schedule and supported by the above authorities.

33.Here, the Wages Claim is clearly a claim within the meaning of Sections 7 and 10 thereof. By the Wages Claim, Mr Lo is making a claim for a sum of money representing the outstanding wages and interest against Ranger: Paragraph 1 of the Schedule to the LTO. This is also the claim over which the Labour Tribunal declined jurisdiction and transferred the same to this Court by the Transfer Order. The Presiding Officer further prescribed in the Transfer Order that the Wages Claim is to be dealt with together with this action by this Court.

34.Upon the Transfer Order, this Court assumes jurisdiction over the Wages Claim, which is to be dealt with together with this action.

35.Mr Lo made the Counterclaim in this action after the Transfer Order. Mr Keung, Counsel for Ranger, and Mr Sam, Counsel for Mr Lo, accepted at the hearing that the Counterclaim is in substance the same as the Wages Claim in all material respects. In my view, it is incorrect and artificial to consider the Counterclaim and the Wages Claim as two separate claims. If separate causes of action, each of which giving arise to a liability, do not necessarily give rise to multiple claims, I do not see how Mr Lo can be regarded as having made two claims, when all along there is only one object claimed by him, namely a sum of money representing the outstanding wages and interest. In my view, the Counterclaim and the Wages Claim transferred from the Labour Tribunal should be regarded, and I so hold, as the same claim, albeit pursued under two actions of this Court.

36.I did not lose sight of the fact the amount claimed under the Counterclaim is slightly lower than the amount claimed by Mr Lo before the Labour Tribunal. However, the difference in quantum does not alter the object of Mr Lo’s claim, namely claiming for a sum of money representing wages and interest.

37.When Mr Lo raised the same Wages Claim by way of the Counterclaim in this action, it became unsatisfactory from the perspective of this Court to allow the same claim to be advanced in two actions. Madam Registrar Soong was clearly aware of this situation, and this led her to give the directions as she did on 18 January 2023, and ultimately to make the Discontinuance Order.

38.I do not consider that this Court’s jurisdiction over the Wages Claim is terminated by the Discontinuance Order. In making the Discontinuance Order, the learned Registrar was in fact exercising her case management powers to (a) resolve the unsatisfactory state of having two parallel actions over the same claim; and (b) allow both Ranger’s claim and the Wages Claim (now by way of Counterclaim of this action) to be dealt with together under this action. It is incorrect to treat the Discontinuance Order as a termination of this Court’s jurisdiction over the Wages Claim.

39.I accept Mr Lo’s submissions and consider that Acumen is distinguishable. The reasoning of the learned Master has to be understood in context. The context against which the learned Master arrived at his decision was that the defendant employee sought to cure the jurisdictional defect of a pre-existing claim by a subsequent transfer order of the Labour Tribunal. The learned Master held that the transfer order could not take retrospective effect and therefore the employee’s claim raised in the Court of First Instance had to be struck out for want of jurisdiction. There is no such circumstance in this case.

40.In other words, despite the Discontinuance Order, this Court still retains jurisdiction over the Wages Claim, which now subsists as the Counterclaim. Accordingly, Ranger fails in making out its Jurisdictional Challenge.

41.As to Mr Lo’s other arguments (delay and estoppel), I need not consider them in detail in the light of my decision above. Briefly, given the mandatory force of Section 7(2) of the LTO, I do not consider those arguments would assist Mr Lo if the Court were to hold that it lacked jurisdiction over the Counterclaim.

Conclusion

42.I therefore dismiss the Summons.

Costs

43.There are no circumstances warranting departure from the “costs follow the event” rule.

44.As to the basis of taxation, Mr Lo asks for costs to be taxed on the indemnity basis. Ranger disagrees. Ranger accepts that it has never indicated any jurisdictional objection to the Counterclaim prior to the Summons. However, Ranger, by its letter of 13 April 2023, invited Mr Lo to agree on consolidation of both DCCJ 3985/2022 and this action, but Mr Lo did not respond to it. Mr Lo submits that he did reply to Ranger, albeit not by way of a letter. I need not resolve this factual dispute. The Summons was indisputably taken out very late and Ranger has offered no good explanation why the Jurisdictional Challenge could not have been raised earlier, or at least at the pre-trial review hearing. The hearing of the Summons took up a half day originally allotted to the trial and thereby caused some disruption to the trial. Overall, I am of the view that the circumstances of this case justify an indemnity costs order, and I so order.

45.I order that Ranger do pay Mr Lo costs of and incidental to the Summons, to be taxed on the indemnity basis if not agreed, with certificate for counsel.

46.I thank Counsel for their assistance.

Mr Stephen Keung, instructed by Jisp Cheung & Co, for the Plaintiff

Mr Perlman Sam, instructed by Huen & Partners, for the Defendant