Chung Man Chiu & Another v. Ad-link Communications Ltd.

HCLA000058/2002

HCLA 58/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 58 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL

CLAIM NO. LBTC 2113/2002)

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Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 22 August 2002

Date of Judgment: 22 August 2002

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J U D G M E N T

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1.This is an application for leave to appeal against a judgment given by the learned presiding officer on 14 June 2002 in favour of the claimants against their former employer, the defendant.

2.The claimants were summarily dismissed by the defendant. They sued the defendant for various sums of money following their summary dismissal. The case of the defendant before the tribunal was that the two claimants were dismissed for cause.

3.Evidence was given by both sides, and various complaints, including very serious complaints of mala fides and conspiracy with an ex-employee of the defendant and an outside company were made against the claimants.

4.The presiding officer made findings of fact in favour of the claimants, and thus the judgment in favour of the claimants.

5.In this application for leave to appeal, the defendant challenges the presiding officer's conclusion in relation to a complaint that there were standing instructions to the claimants not to deal with the ex-employee of the defendant.

6.I do not consider that this is a valid ground of appeal. This is an attempt to challenge the finding of fact made by the presiding officer in relation to the alleged instructions to the claimants. In the intended appeal, no such challenge can be mounted. So I do not grant leave to appeal on this ground, which is ground No. 1, in the application for leave to appeal.

7.The second ground relied on by the defendant in the application is that the presiding officer totally failed to deal with a complaint made by the defendant in the proceedings below, namely, that the claimants wrongfully allowed it to be represented to potential customers of the defendant that the outside company was affiliated with the defendant thereby allowing the outsider to use the defendant's resources to scout a potential client of the defendant and thereby allowing the outsider to take this business and derive financial benefit from a contract obtained by the use of the defendant's resources.

8.I am concerned by this ground of appeal because whether in the ex tempore judgment given by the presiding officer at the conclusion of the hearing or in his subsequent judgment written in English, there was not any specific or, indeed, direct reference to this complaint of the defendant.

9.It is true that the presiding officer referred to a complaint by the defendant that the deal in question was not an attractive deal at all, and that the presiding officer made a finding in favour of the claimants in relation to this complaint. It is not at all clear to me that in dealing with this complaint the presiding officer had also in his mind the earlier complaint about wrongful representation of the affiliation of the outsider with the defendant company.

10.So, in short, the defendant may have a point here in saying that the presiding officer has failed to consider an important complaint made by the defendant against the two claimants which could be used as justification for their summary dismissal; and, of course, since the presiding officer, according to the defendant, has failed to consider this point, the presiding officer's finding that there was no evidence of mala fides, bad faith or conspiracy with the ex-employee or the outside company might not be valid since he has, according to the defendant, failed to consider an important complaint made against the claimants.

11.For my part, I cannot say that this is totally unarguable. Certainly, if a complaint of this nature has been raised, it should have been dealt with before one could decide whether there was any valid ground for dismissing the two claimants.

12.So, for this reason and for this reason only, I am giving leave to appeal. In order to avoid any doubt, I am restricting the intended appeal to this complaint of wrongful representation to potential customers of the defendant that the outside company, i.e. Giant Integrated Communications Limited, was affiliated with the defendant, together with the alleged consequences of allowing such misrepresentation to be made. So, in other words, I am restricting the appeal to ground No. 2 and the legal consequences flowing from this ground.

13.Of course, if this ground is made out, this might affect the presiding officer's subsequent findings relating to mala fides, bad faith and conspiracy. So, for that reason as well, I am allowing the appeal to challenge those findings of the presiding officer but only on that limited basis.

14.So, to recap, I grant leave to appeal only on the grounds indicated above. Costs in the cause of the appeal.

Representation:

Ms Dorothy Siron, of Messrs Boughton Peterson Yang Anderson, for the Defendant