Midas Printing Group Ltd v. Chan Yan Ping Bernadette and Others

HCMP 1719/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1719 OF 2002

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BETWEEN

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AND

HCLA 95/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 95 OF 2001

(ON APPEAL FROM LBTC 4351/2001)

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BETWEEN

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(Heard together)

Before : Hon A Cheung J in Chambers

Date of Hearing : 16 January 2008

Date of Judgment : 16 January 2008

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J U D G M E N T

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1.I have an application before me for the dismissal of the Labour Tribunal appeal (HCLA 95/2001) and the Miscellaneous Proceedings (HCMP 1719/2002).  The Labour Tribunal appeal only involves two of the defendants, ie, D1 and D2 in the Miscellaneous Proceedings.   They are the successful claimants in the Labour Tribunal proceedings and the respondents in the Labour Tribunal appeal. 

2.Their application to dismiss the two sets of proceedings need no longer be dwelt on because the parties have reached an agreement to dispose of that application, namely, that by consent, the Labour Tribunal appeal be dismissed – with the result that the moneys that have been paid into the court will be released to the successful claimants pursuant to the respective Labour Tribunal awards together with the interests accrued.  Any deficiency in interest payment, ie, any difference between the interest at judgment rate on the judgment sum and the interest earned from the money paid into court shall be made up by the defendant in the Labour Tribunal proceedings.  If necessary, execution process can be taken out against the defendant. 

3.So far as the application to dismiss the Miscellaneous Proceedings are concerned, in relation to these two defendants – ie, D1 and D2 – as part of the agreement reached between the parties, the defendants are prepared to withdraw their application to dismiss the Miscellaneous Proceedings, upon the undertakings by the plaintiff in the Miscellaneous Proceedings and the unsuccessful defendant in the Labour Tribunal Proceedings that regardless of the outcome of the Miscellaneous Proceedings, neither of them shall seek to recover, whether directly or indirectly, from the two defendants, ie, the two successful claimants in the Labour Tribunal Proceedings, the awards made in their favour by the Labour Tribunal and received by them accordingly.  So that would dispose of the application by D1 and D2.

4.There remains the application by D4 and D7 in the Miscellaneous Proceedings.  As I said, they are not involved in the Labour Tribunal appeal.  I think Ms So, appearing for all the applicants today, agrees with the Court that the undertaking given to prosecute expeditiously the Miscellaneous Proceedings was given really for the benefit of the two respondents in the Labour Tribunal appeal.  It was not given for the benefit of the other defendants in the Miscellaneous Proceedings, including D4 and D7.  In short, the only grounds relied on by D4 and D7 in support of their application today are really abuse of process in the sense that the plaintiff has abandoned the Miscellaneous Proceedings, and inordinate and inexcusable delay. 

5.To cut a long story short, it all boils down to fairly practical matters.  D4 and D7 do have a stake in the subject matter of the Miscellaneous Proceedings.  Depending on how the instruments in question are to be interpreted in light of what has actually happened, they may or may not have a claim to the money affected.  They have, through Ms So, indicated to the Court that they are not prepared to give up their claim or possible claim to the money affected by the instruments. 

6.Viewed in that light, there is really nothing to be gained by dismissing the Miscellaneous Proceedings because it would not follow from the dismissal of the Miscellaneous Proceedings that D4 and D7 would automatically be entitled to receive their claimed share of the money.  If they want to receive the money, they would need to commence proceedings and, in those proceedings, the same issues that have been raised in the Miscellaneous Proceedings could be raised in defence to the claim. 

7.Thus analysed, I see no real point in dismissing the Miscellaneous Proceedings which are really required to resolve the issues raised in those proceedings.  The dismissal of the Miscellaneous Proceedings would not make those issues go away.  Rather, if D4 and D7 are really serious with their claim to the subject money, they should take out an application for directions for the progression of the Miscellaneous Proceedings to trial.  That would benefit, not only the plaintiff in the Miscellaneous Proceedings but all the defendants who wish to make a claim to the subject money in the Miscellaneous Proceedings as well.

8.So for that very practical reason and, bearing in mind that, after all, in an application of the present kind, the Court has a full discretion whether to accede to the application to dismiss proceedings, I really see no real point in acceding to D4’s and D7’s application.

9.For the sake of completeness, I should point out that the position of D1 and D2, ie, the claimants in the Labour Tribunal Proceedings is quite different.  Apart from the Labour Tribunal awards, they have no financial stake in the Miscellaneous Proceedings.  That is why the parties have been able to reach the agreement that I have outlined and it is, of course, up to the two claimants, ie, D1 and D2 in the Miscellaneous Proceedings to decide what part, if any at all, they would like to take in the Miscellaneous Proceedings which are here to stay. 

10.Having said all that, the plaintiff in the Miscellaneous Proceedings must be reminded that it is the plaintiff in the Miscellaneous Proceedings.  It has the carriage of the proceedings and the burden really is on the plaintiff to proceed with the proceedings, but the position is not complicated by the undertaking already mentioned which, as I said, was only given for the benefit of the Labour Tribunal appeal.  Now that the appeal is gone pursuant to the parties’ agreement, that undertaking is no longer relevant. 

11.For all these reasons, I am not acceding to D4’s and D7’s application to dismiss the Miscellaneous Proceedings. 

Mr Johnny K C Ma, instructed by Deacons, for the plaintiff in HCMP 1719/2002 & for the defendant/appellant in HCLA 95/2001

Ms Maria P M So, instructed by Tang & So, for the 1^st, 2^nd, 4^th and 7^th defendants in HCMP 1719/2002 & for the claimants/respondents in HCLA 95/2001