Laing Agnes v. Lisbeth Enterprises Ltd t/a Phillip Wain International

cacv 204/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 204 of 2004

(on appeal from HCLA NO. 133 of 2003)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing : 21 July 2005

Date of Judgment : 21 July 2005

Date of Handing Down Reasons for Judgment : 27 July 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal.  At the conclusion of the hearing of this application, this court granted conditional leave to appeal on the basis that the questions involved in the appeal ought to be submitted to the Court for decision by reason of their great general or public importance.  The first condition imposed upon the grant of leave was that security of costs in the sum of $400,000 should be provided within 28 days.  The second condition was that final leave would be granted if the defendant gave an undertaking that it would not seek an order for costs of the appeal against the 2^nd claimant, who would be the respondent, even if it should otherwise be entitled to seek such an order.

2.The background to this case can be gleaned from the judgment of this court given on 27 April 2005 and that of the court below given on 20 June 2004.

3.Although the defendant filed a number of affirmations directed to supposed difficulties arising from the interpretation of the Employment Ordinance, Cap. 57 in the judgment of this court and the court below, many of the points made in those affirmations were, apart from being repetitive, perhaps, argumentative.  Suffice it to say that it would not appear that the difficulties posed were insurmountable but it may be said that various commission levels and arrangements might have to be adjusted in order to achieve a result that would comply with the interpretation of the Ordinance and be commercially viable.

4.The applicant put forward a number of questions that were said to be of great general or public importance, however, some of those were specific to the issues in this case rather than being of general application or importance.  The issue which this court considered arose on this case was encapsulated in the two reformulated questions upon which this court was prepared to grant final leave, they were as follows:-

“	1.	Whether sections 41(2) and/or 41C(2) are applicable to employment contracts under which the wage period is on a monthly basis pursuant to which the wages may fluctuate from one calendar month to another by reason of commission payments?
	2.	Whether commission comes within the ambit of ordinary wages within the meaning of section 42, and if so, how the same is to be calculated under all pursuant to sections 41(1) and/or 41C(1)?”

5.The condition in respect of security for costs was the conventional security and no objection was raised as to that.  In respect of the requirement of the undertaking not to pursue any order for costs in the Court of Final Appeal, this court had considered imposing the condition of ordering the appellant to pay the respondent’s costs of the appeal as provided for in section 25(2)(a) of the Court of Final Appeal Ordinance, Cap. 484.  After hearing argument and taking into consideration the amount involved, this court considered that it was appropriate to require an undertaking that the defendant would not seek an order for costs against the 2^nd claimant in respect of the costs of the appeal even if it should otherwise be entitled to seek such an order.  It will be appreciated that this action originated in the Labour Tribunal, which is a forum where, in order to reduce costs, lawyers do not represent the parties.  Also, leave was to be granted on the basis that the questions were of great general or public importance because of their application over a range of industries which were of no concern to the 2^nd claimant.  In those circumstances it is, of course, open to the 2^nd claimant to argue that she should be allowed her costs in the Court of Final Appeal, even if she were not successful there.

Hon Le Pichon JA:

6.I agree.

Hon Stone J:

7.I agree.

Mr Andy Hung, instructed by Messrs Philip S.W. Chan & Co., for the 2^nd Claimant/Respondent

Mr Jeremy S K Chan, instructed by Messrs Gallant Y.T. Ho & Co., for the Defendant/Applicant