Tang Chi on v. Antech Electronics Ltd

HCMP 2717/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2717OF 2013

(On an intended Appeal from HCLA No. 14 of 2012)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the judgment of Deputy High Court Judge Marlene Ng [“the Judge”] dated 19 September 2013 dismissing the Defendant’s appeal against the decision of the Presiding Officer of the Labour Tribunal.

2.Though the proceedings below were conducted in Chinese and the judgment of the Judge was in Chinese, we handed down this judgment in English since the Defendant is represented by lawyers and some of the documents submitted by the Defendant in support of its application are in English.  If the Claimant needs to have translation of this judgment, he can contact my clerk within 3 days after the handing down of this judgment to arrange for an appointment to have oral interpretation of this judgment by a court interpreter.

3.Under Section 35A of the Labour Tribunal Ordinance Cap 25, a party dissatisfied with a decision of the Court of First Instance may, within 7 days after the date of decision, apply to the Court of Appeal for leave to appeal.  It further provides that the Court of Appeal may grant leave if it considers that a question of law of general public importance is involved. 

4.Section 35A(2)(a) requires leave to appeal be made in the prescribed form setting out the question of law.

5.In the present case, the application of the Defendant for leave is irregular in the following respect:

(a) It was not made within 7 days; the summons for leave was issued on 16 October 2013 whilst the decision was dated 19 September 2013; and

(b) It did not set out the question of law.

6.In the summons, three grounds of appeal were set out.  The first two grounds related to the interpretation of the employment contract between the parties against the factual background of this particular case.  They do no set out any questions of law of general public importance.

7.As regards ground (3), it challenges the non-availability of appeal on facts in respect of Labour Tribunal appeals as being against procedural fairness.  This was not a point raised in the court below.  Nor did counsel for the Defendant pinpoint in his written submissions any factual matters which the Defendant should have been allowed to canvass at the appeal hearing before the Judge.  That being so, on the materials before us, this point does not arise for determination in the present case.

8.As regards the delay in the lodging of the application, the Defendant offered an explanation that due to non-availability of its original counsel, the written skeleton in support of the application could not be prepared in time and the attempt to lodge a summons for leave on 26 September 2013 was rejected by the Registry due to non-compliance with Order 59 Rule 2A(1) of The Rules of the High Court Cap 4A. 

9.We note that in the summons which the Defendant’s solicitor attempted to file on 26 September 2013, there was this statement in paragraph 1 of the proposed grounds of appeal:

“Important questions on points of law of great and general public importance which will be perfected by counsel in due course.”

10.Thus, the Defendant was well aware of the requirement of Section 35A of the Labour Tribunal Ordinance. Despite that, it chose not to comply with it in the summons filed on 16 October 2013.  

11.If there were questions of law of general public importance raised in the summons of 16 October 2013 arising from the facts of the present case, we might have been more sympathetic to the application for extension of time.

12.However, in view of our above conclusions as to the absence of questions of law of general public importance in this application, we dismiss the application for leave to appeal out of time.

13.In the circumstances, we are also of the view that the application is totally without merit and we order pursuant to Order 59 Rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

14.The Claimant has, acting in person, lodged representations opposing leave in accordance with Order 59 Rule 2A(4).  We order the Defendant to pay the costs of the Claimant in opposing leave and we provisionally assess such costs at $1,000.  If any party wishes to vary the quantum of this costs order, he may apply to vary it by writing to this court (with a copy served on the other party) within 14 days from the date of this Judgment, together with its/his submissions on the proper quantum, in which event the other party may respond in writing within 14 days from being served with the written application.  This court will then decide the quantum on paper. 

Written submissions by the Claimant

Written submissions by Lennon & Lawyers, for the Defendant