Chan Ho Yuen v. Multi Circuit Board (China) Ltd

CACV 216/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2010

(ON APPEAL FROM DCEC NO. 549 OF 2008)

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BETWEEN

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CACV 217/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 217 OF 2010

(ON APPEAL FROM DCEC NO. 1527 OF 2008)

BETWEEN

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Before: Hon Tang VP, Kwan and Fok JJA in Court

Date of Hearing: 18 January 2012

Date of Judgment: 18 January 2012

Date of Handing Down Reasons for Judgment: 1 February 2012

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

1.At the conclusion of the hearing of its notices of motion in each of these appeals dated 27 October 2011, we dismissed the applicant’s applications for leave to appeal to the Court of Final Appeal against our judgment dated 30 September 2011 indicating that we would give our reasons later, which we now do.

2.Leave was sought under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  The notices of motion identified eight questions said to be of great general or public importance which ought to be submitted to the Court of Final Appeal for decision but, at the hearing, Mr Ramanathan SC leading Mr Andrew SY Li for the applicant (respondent below) indicated that leave was only sought in respect of questions 6 and 7 set out in the notices of motion.

3.Questions 6 and 7 are in the following terms:

“6. Whether, for the purposes of the Ordinance, and in particular s 5(4)(g), a break in the course of employment can only be temporary in nature and that the course of employment must necessarily resume after that break, even if the employer is unaware of the nature and duration of the break and/or the manner or mode of transportation that the employee would thereafter adopt;

7. Whether the Court of Appeal erred in finding that, in the absence of express directives or prohibitions from an employer, an employee had implied permission to take any mode of transport, regardless of the safety of that mode of transport”.

4.In allowing the appeals, this Court found, differing from the learned Judge below, that Mr Chan and the Deceased had the implied permission of the respondent to travel in Mr Lee’s car on their return trip to Hong Kong after the annual dinner.  We also held, differing from the learned Judge below, that the deviation in the journey constituted by the detour to the karaoke parlour for 2½ hours only operated as a temporary interruption of the journey and did not mean that they were no longer in the course of their employment when they resumed their homeward journey.

5.In respect of both those key issues in the appeals, this Court reached its decision on the basis of the particular facts in this case.

6.On the question of implied permission, we held that whether an employee can be said to have such implied permission is to be determined by reference to all the surrounding facts and the question was to be answered objectively by a review of whether those facts, including the past history between the particular employer and his employees, would reasonably lead an employee to believe that he is permitted by his employer to travel by the particular means of transport (§38).

7.Neither of the two questions in the notices of motion now relied upon seeks to raise any issue as to whether this was the proper test to be applied in respect of s. 5(4)(g) of the Employees’ Compensation Ordinance, Cap. 282.

8.Instead, question 7 in the notices of motion (which addresses the issue of implied permission) simply raises the question of whether this Court erred on the facts in concluding that Mr Chan and the Deceased had implied permission to travel in Mr Lee’s car for their return journey to Hong Kong.  Even if we are wrong in having reached that conclusion, question 7 cannot be said to be one of great general or public importance.

9.On the question of the deviation, we held that the particular interruption to this particular journey did not cause the resumed return journey to cease to be one taken in the course of Mr Chan and the Deceased’s employment with the respondent (§68).

10.Question 6 in the notices of motion is said to arise in respect of the issue of the temporary interruption of a journey undertaken by an employee in the course of his employment.

11.So far as that question is concerned, it is clear from the Judgment (§68) that the Court accepted that there may be deviations in a journey that operate as more than a temporary interruption.  Accordingly, question 6 does not arise from our judgment.

12.Furthermore, on the facts of this particular case, we did not consider the deviation in the journey constituted by the detour to the karaoke parlour to be such as to terminate the journey as one taken in the course of employment.  On the facts, we found the deviation to be no more than a temporary interruption to the return journey in the course of their employment, which continued when Mr Chan and the Deceased resumed their homeward journey together with Mr Lee. Therefore, and in any event, the Court’s conclusion that the return journey continued after the deviation, so that the deviation was only a temporary interruption to that journey, was one reached on the facts of this case.  Even if that conclusion is wrong, question 6 does not give rise to a question of great general or public importance.

13.The Court recognised the fact that cross-border employment and work-related travel are common features for Hong Kong employees.  However, and with respect to the submissions made on behalf of the applicant, we do not agree that the two questions posed in the notices of motion are proper questions for the Court of Final Appeal.

14.For these reasons, the notices of motion seeking leave to appeal to that court were dismissed with costs, and the respondents’ (applicants below) own costs be taxed in accordance with the Legal Aid Regulations.

Mr Neville Sarony SC and Mr Yeung Ming Tai, instructed by Or & Lau, for the Applicant/Respondent in CACV 216/2010 and Tsang, Chan & Woo, for the Applicant/Respondent in CACV 217/2010

Mr Kumar Ramanathan SC and Mr Andrew S Y Li, instructed by Munros, for the Respondent/Applicant in CACV 216/2010 and CACV 217/2010