HKSAR v. Li Fung Ching Catherine

HCMA 662/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 662 OF 2011

(ON APPEAL FROM KTS 24386-24396 OF 2010)

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BETWEEN

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Before: Deputy High Court Judge A.Wong in Court

Date of Hearing: 10 January 2012

Date of Judgment: 11 January 2012

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J U D G M E N T

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1.This is an application for a certificate that the decision in the case involved points of law of great and general importance. Despite the trial, the appeal hearing and this application hearing were all conducted in Chinese, both parties agreed that it is convenient and desirable that my written decision be presented in English.

Background

2.The applicant was at the material times a director of a company.  She was found guilty by a magistrate after trial of the offences as set out in 11 summonses which allege two categories of offence under the Employment Ordinance, Cap 57 :

“(a) The company wilfully and without reasonable excuse failed to pay to an employee wages due to him, and the offence was committed with the consent or connivance or to be attributable to the neglect on the part of the Applicant; and

(b)   The company willfully and without reasonable excuse failed to pay to an employee wages not later than 7 days after the day of termination of contract of employment of the employee, and the offence was committed with the consent or connivance or to be attributable to the neglect on the part of the Applicant.”

3.She appealed against the convictions.  I dismissed the appeal on 16 December 2011.

The Application

4.By a Notice of Motion, the applicant applied under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate that points of law of great and general importance were involved in my decision.

5.Section 32(2) of the Ordinance provides :

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

The points of law

6.The following two points of law are alleged:

“(1) Whether a person or a company who is making an honest and genuine attempt in salvaging his or her business decided to defer payment of wages to the employees would (amount) to a reasonable excuse under section 63C of the Employment Ordinance, Cap 57?

(2) Whether a dissenting director in a company’s board of directors meeting who voted against the decision in deferring payment of wages would (amount) to “consent, or connivance of, or to be attributable to any neglect” on her part within the meaning of section 64B(1) of the Employment Ordinance, Cap 57?”

Submission

7.Counsel for the applicant, Mr    Patrick Chong, submitted that there is a strong public interest for the Court of Final Appeal to clarify the two points of law since many companies and directors are in similar situation and face similar problem.

8.The submission of Miss Vinci Lam, SPP, Counsel for the Respondent, may be boiled down to the following points :

(a)  The present case was decided upon its own facts, in other words, the decision was case specific;

(b)  As regards the first alleged point of law, the issue had been clearly decided in HKSAR v Wong Yuk-tung & Another [2011] 1 HKC 409; and

(c)  In any case, no point of law of great and general importance was involved in the decision of the present case.

9.In reply, Mr Chong made the following submission :

(a)   As regards the first alleged point of law, the decision in HKSAR v Wong Yuk-tung & Another [2011] 1 HKC 409, was erroneous;

(b)   in any case, the law has not been settled; and

(c)   as regards the second alleged point of law, it is of public interest to clarify whether the conduct of the Applicant amount to connivance.

Consideration

10.The decision of the case was made having much regard to the particular factual circumstances of the case. 

11.In any case, having heard submission, I am not persuaded that the decision involved points of law of great and general importance. 

Conclusion

12.I therefore decline to certify any of the questions posed as being a point of law of great and general importance involved in the decision.

Mr Patrick Chong, instructed by Messrs Stephen Mok & Co., for the Appellant

Ms Vinci Lam, SPP, of Department of Justice, for the Respondent

Please refer to FAMC4/2012 for the relevant appeal(s) to the Court of Final Appeal.