Yung Chi Keung v. Protection of Wages on Insolvency Fund Board and Another

CACV 37/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 37 OF 2014

(ON APPEAL FROM HCAL 55/2013)

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JUDGMENT (LEAVE TO APPEAL)

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Hon Cheung CJHC (giving the judgment of the court):

1.On 2 December 2014, we handed down our judgment dismissing the applicant’s appeal from the judgment and order of Louis Chan J dated 19 December 2013 dismissingthe applicant’s application for judicial review. The applicant now seeks leave to appeal from our judgment to the Court of Final Appeal. By agreement, this application is dealt with without an oral hearing on the basis of written submissions only.

2.The facts and issues involved in the appeal, as well as our reasons for dismissing the appeal, have been fully set out in our judgment, and it is not necessary to repeat them here.

3.In seeking leave to appeal, Mr Alan Ng, for the applicant relies on four issues of law that are said to be of great general or public importance:

“(a) In discharging his statutory function under the Protection of Wages on Insolvency Ordinance (Cap 380) (‘PWIO’), how should the Commissioner calculate the amount of ex gratia payment to be made to an applicant upon the insolvency of the applicant’s employer?

(i) As a matter of statutory interpretation, is it permissible for section 16(1) of PWIOto be construed as regarding the capped amount calculated as per section 16(2)(f)(i) of PWIO as the starting point in the Commissioner’s calculation of the amount of ex gratia payment to be made to the applicant?

(ii) As a matter of statutory interpretation, should section 16(1) of PWIO be construed as mandating the Commissioner to regard the unpaid position (i.e. in the instant case, the amount of unpaid severance payment which is the difference between the section 31G figure and the section 31I figure) of the applicant as the starting point in his calculation of the amount of ex gratia payment to be made to the applicant?

(b) Is the ‘reading in’ of the words ‘or any part thereof’ after the words ‘of the amount of … the severance payment’ in section 16(1) of PWIO a legitimate use of the purposive approach to statutory interpretation or a usurpation of the legislative function under the thin disguise of statutory interpretation?

(c) In what circumstances can the court read into a statute words which are not there?

(d) Is the court permissible to regard the difference between the Fund’s net outlays when the section 31I benefit was known to the Commissioner and those when the section 31I benefit was unknown to the Commissioner at the time of payment [See para.59 of the C/A Judgment] i.e. the consequence of the Applicant’s interpretation, as a reason for rejecting the Applicant’s interpretation [See para.60 of the C/A Judgment]?

(i) In what circumstances can the court regard the consequence of a particular interpretation in construing a statute?

(ii) If the court can regard the consequence of a particular interpretation in construing a statute, what kind of consequence can the court pay heed to?”

4.In our view, (b) is a case specific question which does not raise any question of great general or public importance.  It cannot form the basis for granting leave to appeal.

5.On the other hand, (c) is an extremely general question, the answer to which can be found in case law and standard works on statutory interpretation.  It cannot be a ground for granting leave to appeal, absent a proper factual context.

6.The main body of (d) is again a case specific question.  It does not raise any question of great general or public importance.  As for (i) and (ii), they are again extremely general questions of statutory interpretation.  Absent a proper context, they cannot form the basis for granting leave to appeal to the Court of Final Appeal.

7.All this leaves (a).  In our view, (a) in essence raises a question of statutory interpretation regarding section 16(1) and other related provisions in Cap 380, in relation to how an ex gratia payment under section 16(1) should be fixed on facts such as those obtaining in the present case.  Given that the Ordinance is an important piece of social legislation designed to benefit employees in need of help, and that the question of interpretation raised in relation to how an ex gratia payment should be fixed is an important and general one potentially affecting many in the same or a similar situation, and in view of the desirability of having the mooted question settled once and for all by the highest authority, we are satisfied that the intended appeal raises a question of great general or public importance, namely, the true interpretation of section 16(1) and other related provisions in the Ordinance regarding how an ex gratia payment should be fixed in circumstances such as the present (or in other similar or related circumstances), fit for the determination of the Court of Final Appeal.

8.On that basis and that basis only, we grant leave to appeal on conditions as per paragraph 2A of Practice Direction 2.3.  We also order that the costs of the application for leave to appeal be in the cause of the appeal to the Court of Final Appeal.

Mr Ng Man Sang Alan, instructed by Kwok, Ng & Chan, for the applicant

Ms Roxanne Ismail SC and Mr Jonathan Chang, instructed by the Department of Justice, for the 2^nd respondent