Arthur Chung v. Hong Kong Institute of Education

DCCJ 2128/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2128 OF 2011

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Coram : Deputy District Judge K. Lo in Chambers (open to public)

Date of Hearing : 3 November 2011

Date of handing down of Decision : 21 December 2011

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DECISION

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Background

Plaintiff’s employment with Defendant

1.Pursuant to a letter of employment dated 10 August 2009, Plaintiff was employed by Defendant as a part-time Research Assistant for a one year fixed term contract (for the period commencing 20 August 2009 to 19 August 2010) at monthly remuneration of HK$6,500 (“the Employment Contract”).

2.The Employment Contract provides that the appointment of Plaintiff may be terminated by either party by giving 7 days’ notice during the first 3 months of the appointment.

3.Plaintiff tendered his resignation letter dated 27 October 2009 (“the Resignation Letter”). In the resignation letter, Plaintiff gave 7 days notice to the Defendant. He stated also that his last day of employment would be 2 November 2009.

4.By letter dated 29 October 2009, Defendant wrote to Plaintiff acknowledging receipt of the Resignation Letter and confirming, inter alia, that his resignation would take effect from 3 November 2009.

5.Plaintiff says that he was asked by an unnamed professor of the Defendant to tender his resignation. The same was denied.

Plaintiff’s application for the Defendant’s Doctor of Philosophy Program (“the PHD Program”)

6.On or about 7 May 2010, Plaintiff submitted his application for the PHD Program.

7.The same was unsuccessful. The Registry of Defendant informed the Plaintiff by email dated 28 June 2010 that Defendant was unable to offer him a place in the class starting June 2010 and that his application would be reconsidered again for the January 2011 intake.

8.Plaintiff’s application for the subsequent intake was also unsuccessful and the Registry of Defendant notified Plaintiff of the same again by way of email.

9.Plaintiff later wrote to the Defendant on 19 May 2011 and requested for admission for the PHD Program for the 2011/2012 academic year. The same was also rejected by email from the Registry to Plaintiff dated 25 May 2011.

10.The Plaintiff now claims against the Defendant, inter alia, for:-

1. HK$75,000 (comprising HK$65,000 for loss of wages and HK$10,000 as compensation) arising from the alleged “unjust dismissal” of his employment by the Defendant; and

2. relief arising from Plaintiff’s unsuccessful application for admission to Defendant’s PHD Program, including:

(i)    an order that Plaintiff be admitted as a candidate on the PHD Program and that Plaintiff be offered a monthly studentship of not less than HK$13,000 during the 3 year duration of the program; and

(ii)    sum of HK$156,000 for declining to admit Plaintiff as a student on the PHD Program.

11.The Defendant subsequently took out a Summons on 19 July 2011 (“the Summons”) seeking for the following orders:-

(1)  The Plaintiff’s Writ of Summons and Statement of Claim in this action be struck out on the alternative grounds that (i) it disclose no reasonable cause of action, (ii) it is scandalous, frivolous and/or vexatious, (iii) it may prejudice, embarrass and/or delay the fair trial of the action, and/or (iv) it is otherwise and abuse of the process of the Court; and

(2)  This action against the Defendant be dismissed.

or

(1)  Under Order 18 rule 19 of the Rules of the District Court, for an Order that Plaintiff’s claim herein be struck out on the grounds that (i) they disclose no reasonable cause of action; (ii) are scandalous, frivolous and/or vexatious; (iii)may prejudice, embarrass and/or delay the fair trial of the action; and/or (iv) they are otherwise an abuse of process of the Court.

(2)  Alternatively, under Order 12 rule 8 of the Rules of the District Court, for a declaration that the District Court has no jurisdiction to determine Plaintiff’s claim for unjust dismissal of his employment with Defendant as such claim falls within the exclusive jurisdiction of the Labour Tribunal.

(3)  Further alternatively, under Order 14A of the Rules of the District Court, determination of the following questions of law, which, if answered in the negative, would dispose of the entire claim of Plaintiff:

(i)   Whether Plaintiff’s claim for unjust dismissal falls within the exclusive jurisdiction of the Labour Tribunal;

(ii)   Whether Plaintiff has any cause of action in law against Defendant in relation to his unsuccessful application for admission to the PHD program.

12.This Court now deals with the Summons.

Issues

Does District Court has jurisdiction in the present “unjust dismissal” claim?

13.It is submitted by Ms. Tong, counsel for the Defendant that there can be no dispute that in respect of Plaintiff’s alleged “unjust dismissal” claim, the Labour Tribunal has exclusive jurisdiction.

14.She referred this Court to section 7 of the Labour Tribunal Ordinance (Cap. 25) (“the Ordinance”) which provides that:-

(1)  The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2)  Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

15.The Schedule to the Ordinance includes, inter alia, a claim for a sum of money which arises from a breach of a term of a contract of employment, other than a claim specified in the Schedule to the Minor Employment Claims Adjudication Board Ordinance (Cap. 453). The Plaintiff’s claim in this case does not fall within the jurisdiction of the Minor Employment Claims Adjudication Board.

16.Section 10 of the Ordinance also provides as follows:

“(1) The tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction.

(2) The tribunal may, when it declines jurisdiction under subsection (1), transfer the claim to the Court of First Instance, the District Court or the Small Claims Tribunal, in such manner as may be prescribed. (Amended 25 of 1998 s. 2; 25 of 1999 s. 4)

(3)   This section shall not apply to any claim transferred to the tribunal in accordance with any rules made under section 73B of the District Court Ordinance (Cap 336). (Added 67 of 1995 s. 91)

(4)    This section shall not apply to any claim transferred to the tribunal in accordance with any rules made under section 73C of the District Court Ordinance (Cap 336). (Added 86 of 1995 s. 88)

(5)    This section shall not apply to any claim transferred to the tribunal in accordance with any rules made under section 73D of the District Court Ordinance (Cap 336). (Added 91 of 1997 s. 69)

(6)    This section shall not apply to any claim transferred to the tribunal in accordance with any rules made under section 73E of the District Court Ordinance (Cap 336). (Added 29 of 2008 s. 86)

17.It is submitted by Ms. Tong that the Labour Tribunal has exclusive jurisdiction to determine monetary claims arising from a breach of a contract of employment in the absence of a decision by the Tribunal to decline jurisdiction under section 10(1) of the Ordinance. She submitted that the District Court or any other Court in Hong Kong has no jurisdiction to determine such claims (see Hooi Siew Fong Rachel v. Cathay Pacific Airways Limited (unreported, CACV 146/2010, 18.2.2011) at paragraph 15 and 17; Ngan Yu Chiu v. New World First Bus Services Limited(unreported DCCJ 824/2009, 19.4.2010) at paragraph 17-19).

18.Ms. Tong says that Plaintiff’s claim for “unjust dismissal” could only be premised upon a breach of the Employment Contract.

19.The Plaintiff on the other hand said he actually relied on paragraph 3 of the Schedule to the Ordinance which says the Labour Tribunal shall not have jurisdiction to hear and determine a claim for a sum of money or otherwise in respect of a cause of action, founded in tort, whether arising from a breach of contract or a breach of duty imposed by a rule of common law or any enactment. He claims his cause of action against the Defendant is based on tort.

20.Plaintiff fails to elaborate as to how the “unjust dismissal” was founded in tort.

21.This Court could not see how that the case of “unjust dismissal” could be a valid claim or recognized cause of action in tort which would entitle Plaintiff to compensation or loss of wages. This claim could only be premised upon a breach of contract. This Court take the view therefore that the District Court has no jurisdiction to deal with the “unjust dismissal” claim of the Plaintiff. Clearly, the Plaintiff has wrongly commenced the present claim for “unjust dismissal” in the District Court and such claim would be struck out on such ground.

Is there a reasonable cause of action regarding the admission to PHD Program?

22.I now deal with the Plaintiff’s claim based on his unsuccessful application for admission to the PHD Program.

23.This Court is well aware that it is only in plain and obvious case that the Court should exercise its summary power to strike out the endorsement on any writ or any pleadings. The claim must be obviously unsubstantial, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the Court will strike it out. (Hong Kong Civil Procedure, 2012 edition, Order 18/19/4)  

24.In traversing the Statement of Claim relating to this part of Plaintiff’s claim, this Court is unable to discover the legal basis upon which the claim is premised upon.

25.The Plaintiff has not pleaded any valid cause of action in law in respect of his unsuccessful application for admission for the PHD Program.

26.I agree as submitted by Ms. Tong that Defendant has no legal obligation to accept Plaintiff’s application for admission. No such legal obligation has in fact been pleaded by Plaintiff in the Statement of Claim.

27.Plaintiff did complain that the Defendant has failed to give reasons for the refusal to admit him to the PHD Program. Again, I am unable to see legal basis properly pleaded in support of Plaintiff’s submission that a tertiary institution is obliged to offer reasons for refusal of admission to their programs. In any event, even adopting the widest liberal interpretation to the pleadings of the Plaintiff, now acting in person, no proper cause of action can be made out or was pleaded or was relied upon by the Plaintiff in the Statement of Claim, whether in contract or in tort, that would entitle Plaintiff to the relief sought.

28.This part of Plaintiff’s claim must also be struck out as it discloses no reasonable cause of action.

29.It follows therefore that the claims of the Plaintiff as pleaded in the Statement of Claim should be struck out in their entirety and the action is dismissed with costs and I so order.

30.I also make an order nisi that the Plaintiff shall pay the Defendant costs of this action (including costs of this application) with certificate for counsel, the same is summarily assessed at $129,087.

Plaintiff: in person, present

Ms. Sara Tong, instructed by Messrs. Mayer Brown JSM, for the Defendant