LAM PIK SHAN v. HONG KONG WING ON TRAVEL SERVICE LTD

CACV 394/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2007

(ON APPEAL FROM HCLA NO. 19 OF 2006)

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BETWEEN
LAM PIK SHAN 15th Claimant
and
HONG KONG WING ON TRAVEL SERVICE LIMITED Defendant

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Before: Hon Rogers VP, Le Pichon JA and Suffiad J in Court

Date of Hearing: 8 October 2008

Date of Judgment: 8 October 2008

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 9 May of this year. The matter arises in relation to an appeal from the Employment Tribunal. The application is put on three grounds. First of all,it is put on the ground that under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, the defendant should be given leave to appeal. Secondly, it is said that there are matters of great general or publicimportance under section 22(1)(b) and thirdly, it is said that leave should be given under the or otherwise ground.

2. Turning to the first point, the basis upon which it is said that leave should be given as of right is that it is said that thereare other claims and that this was a test case.

3. This may have been the first case to go through the appeal process. It also appears to have been the first case, or certainly oneof the first cases, in relation to this point that was decided by the Tribunal, but that does not make it a test case. Althoughfor practical purposes the other claimants may abide by any decision which is given in this court or above or in the court belowin respect of the 15th Claimant, that still does not make it a test case. There has been, as I understand it, no agreement or ordermaking the decision in this case binding on all the other claimants as of right. In that case, the criterion for a test case doesnot exist. To put it in practical terms, although the defendant may say the result of this case may for practical purposes meanthat its liability when taking other applicants into accounts likely to exceed $1 million, as far as the 15th Claimant is concernedthe amount at issue in this case certainly does not exceed $1 million and so, in my view, this is not a case under section 22(1)(a).

4. Turning to the matters that are sought to be raised under section 22(1)(b), the question of whether matters are of great general or public importance such that leave should be given are primarily mattersfor the Court of Final Appeal, but in my view this was a straightforward matter of statutory interpretation, particularly followingthe amendment of the Ordinance and the clear wording of the Ordinance relating to commissions.

5. Finally, I do not see any grounds for exercising discretion under the ‘or otherwise’ limb. I would therefore dismiss this application.

Hon Le Pichon JA:

6. I agree.

Hon Suffiad J:

7. I agree.

(Anthony Rogers) (Doreen Le Pichon) (A. R. Suffiad)
Vice-President Justice of Appeal Judge of the Court of First Instance

Mr Ambrose Ho SC and Mr Erik Shum, instructed by Messrs K B Chau & Co., for the 15th Claimant/Respondent

Mr Frederick Chan, instructed by Messrs Winnie Mak, Chan & Yeung, for the Defendant/Applicant

Appeal refused: see FAMV55/2008 dated 19 January 2009