Changking Leung v. Better Hong Kong Movement Association Ltd

HCMP 642/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 642 OF 2010

(ON AN INTENDED APPEAL FROM HCLA NO. 16 OF 2009)

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BETWEEN

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Before: Hon Tang VP and Yuen JA in Chambers

Date of Judgment: 28 April 2010

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.The claimant’s claim against his employer was dismissed by Mr Mak Kwok Cheung, a Presiding Officer of the Labour Tribunal. His appeal was dismissed by Yam J by a judgment dated 24 March 2010. The claimant now seeks leave to appeal to the Court of Appeal.

2.Under section 35A of the Labour Tribunal Ordinance, Cap. 25, leave to appeal may be granted if this court considers that a question of law of general public importance is involved.

3.According to the claimant, Dr Yuan of his employer had said to him:

“我覺得你兩個簡直要piss off.”

4.The claimant’s claim was that he had been constructively dismissed because “the very root of the employment contract” had been breached and that there was constructive dismissal by the breach of an “implied term of relationship of trust and confidence”

5.According to Dr Yuan, he had said:

“I’m pissed off at you two.  You two can do much better.”

6.The learned tribunal officer preferred the evidence of Dr Yuan. He took the view that Dr Yuan was only expressing his anger with the word “pissed off” and that he did not intend to use those words to ask the claimant to leave the defendant. He also found that the words “pissed off” did not amount to abusive language. The learned tribunal officer found support from the Shorter Oxford Dictionary (5^th ed.).

7.The claimant stated in his affirmation dated 31 March 2010 that:

“10.  In the current case, it is not enough to say since ‘the learned Presiding Officer decided that ‘piss off’ could not amount to abusive language’ (para ‘11), ‘that should be the end of matter’. There are certainly many other factors which need to be, but not yet, thoroughly considered. They include, but not limited to, the tone, the gesture, the demeanour and the atmosphere when the words were said, how the words ‘piss off’ was used at the material time, and also, but not limited to, the undisputed facts of (1) my situation of being suddenly thrown a bank cheque and asked to leave immediately, (2) Dr. Yuan’s sudden outburst at a ‘cordial friend’ as described by him, (3) its impact on me, (4) my rushing out or the room in anger. etc.”

8.In our opinion no question of law of general public importance is involved in the proposed appeal, and we refuse leave to appeal.

9.Under O. 59 r. 2A(5) we may determine this application without a hearing and we do so. Since the application has no merit, we also make an order pursuant to O. 59 r. 2A(8) that the applicant may not request the determination to be reconsidered at an oral hearing inter partes.