Lee Thai Lai v. Wong Chung Kai t/a Kai Hing Trading Co and Another

HCLA000064/2003

HCLA 64/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 64 OF 2003

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 213/2003)

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Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 20 August 2003

Date of Judgment: 28 August 2003

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J U D G M E N T

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1.This is the 1st Defendant's application for leave to appeal against an order made by the Labour Tribunal on 16 May 2003, whereby judgment was entered for the Claimant against both Defendants as the Claimant's former employers, on a joint and several basis, in respect of payment in lieu of notice, year-end pay and severance pay.

2.Despite my initial reactions, on reflection I am persuaded by counsel that there are arguable grounds of appeal, which are as follows:

(1) In so far as the Tribunal found that the Claimant was employed by the 2nd Defendant but held that it could lift the corporate veil of the 2nd Defendant and thus hold the 1st Defendant also liable as employer of the Claimant, the Tribunal erred in holding that it could lift the corporate veil and hold the 1st Defendant liable as employer in the circumstances of the present case;

(2) In so far as the Tribunal found that the 2nd Defendant was merely acting as an agent of the 1st Defendant in employing the Claimant and the 1st Defendant being the principal was thus liable as employer of the Claimant, the Tribunal's finding was contradicted by its own conclusion that on the same facts, the 2nd Defendant was also the employer of the Claimant and thus liable for the claim, given that in the absence of special circumstances (and the Labour Tribunal had not indicated any) an agent drops out of the picture after the contract between his principal and a third party has been concluded and is not liable under it;

(3) In so far as the Tribunal otherwise held that both Defendants were liable jointly and severally as employers of the Claimant, the Tribunal had not indicated the basis for so holding both Defendants liable as employers, and there was indeed no legal basis for so holding in the circumstances of the present case.

3.In the circumstances, I grant leave to appeal, which is limited to the above grounds only.

4.Subject to any further or other order of the court, I order that the costs of the present application be in the cause of the appeal.

Representation:

Miss Maggie Pui Kei Wong, instructed by Messrs T H Koo & Associates, for the 1st Defendant