Pacific Wing Shing Air Duct Co Ltd and Another v. Li Chun Kit

HCMP 487/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 487 OF 2006

(ON APPEAL FROM HCLA 74 OF 2003 )

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BETWEEN

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Before:  Hon Yeung & Yuen JJA in Court

Date of Hearing:  16 May 2006

Date of Judgment:  23 May 2006

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.The applicant, Li Chun kit succeeded in the Labour Tribunal and recovered additional commission of about $150,000.00 from the respondents.

2.The respondents appealed. On 23 March 2004, Deputy High Court Judge To allowed the appeal and set aside the additional commission with costs.

3.On 13 March 2006, the applicant sought extension of time to appeal against the order of Deputy Judge To, which was refused by Tang JA on 14 March 2006.

4.The applicant renewed his application.

5.The case turned on the proper interpretation of the “Commission Document” which provided for the calculation of commission payable to the applicant.

6.The applicant was entitled, under the terms of his employment, to commission calculated on the “annual sales invoice amount” which was defined as “the total amount of sales invoices which have been settled at the end of each financial year”.

7.The Presiding Officer in the Labour Tribunal accepted the applicant’s contention that his commission should be calculated on the basis of the invoiced amount, irrespective of whether the invoices had been settled.

8.Deputy Judge To came to a different view. He concluded that the word “settled” clearly indicated that only invoices, which had been actually paid, would be counted for commission purpose. Therefore the amount of invoices issued, but not paid and the amount that did not require settlement would not be counted for commission purpose.

9.The applicant, in his affirmation, tried to explain the long delay of almost two years from the date of the Deputy Judge’s order and the date of his application for extension of time to appeal. He said the delay was the result of misleading lawyer’s advice. He emphasized that it was the Presiding Officer who made a mistake in law and it was therefore unfair that he should be held responsible for the consequences, in particular the respondents’ costs of over $200,000.00. He also said that the respondents had lied about the amount of the commission and that he had in fact been underpaid.

10.Section 35A of the Labour Tribunal Ordinance provides:

“(1) If any party is dissatisfied with a decision of the Court of First Instance on an appeal heard by leave given under section 32, such party may, within 7 days after the date of the decision, apply to the Court of Appeal for leave to appeal and, if the Court of Appeal considers that a question of law of general public importance is involved, it may grant leave.”

11.Not only was the applicant late by over two years, he had not identified any question of law, let alone one of general public importance. The allegation that he had been underpaid was never properly raised and therefore not a matter we should be concerned with in this application.

12.The case turned entirely on the interpretation of the contractual document, and with respect, Deputy Judge To’s interpretation was clearly a correct one.

13.Quite apart from the serious delay for almost two years, the applicant failed to demonstrate an arguable case for leave to appeal to the Court of Appeal.

14.In any civil litigation, the successful litigant normally gets costs and the applicant can have no legitimate complaint against the costs order of Deputy Judge To. It is a sad reality that the applicant must accept.

15.We can find no valid basis for extending time for the applicant to appeal. His renewed application for leave is therefore dismissed.

Applicant: In person, present.