FAMV No. 7 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 7 OF 1998 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV 155 OF 1997)
|ARCHER, HAROLD DEAN
|THE HONG KONG CHANNEL LIMITED
Appeal Committee : Mr Justice Litton PJ, Mr Justice Ching PJ and
Mr Justice Bokhary PJ
Date of Hearing : 7 May 1998
Date of Determination : 21 May 1998
Mr Justice Litton PJ:
1. This is the determination, by a majority, of the Appeal Committee on an application for leave to appeal made under section 23(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.
2. The matter comes before us in unusual circumstances. The amount in dispute is well below $1 million. The question involved in the appeal is not of great general or public importance. What the applicant says is that through oversight on the part of everyone concerned in the courts below an obvious point of law in his favour has been overlooked, resulting in blatant injustice. Section 22(1)(b) of Cap 484 empowers us to give leave if we are of the opinion that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision. Counsel for the applicant submits that the words "or otherwise" in s22(1)(b) allows us a wide margin of discretion to correct the wrong.
3. The bare facts behind the application are these. The applicant was the managing director of the defendant company, and had been so for many years. He was also a shareholder in the company. At a director's meeting held on Saturday 17 June 1995 a resolution was passed to the effect that the applicant's employment "be terminated immediately". By a second resolution at the same meeting the applicant was "removed as managing director" and someone else was appointed in his place. On 5 July 1995 the company sent a letter to the applicant enclosing a cheque for HK$40,000. The letter said:
"As instructed by the Hongkong Channel's Board of Directors, please find enclosed a cheque for one months salary HK$40,000 in lieu of notice.".
4. The company had been in financial difficulties for some time prior to June 1995. The applicant had, on a number of occasions, deferred drawing his salary to enable the company to pay its creditors and was therefore owed salary in arrears at the time of his dismissal. He brought proceedings against the company in the Labour Tribunal but these were transferred to the High Court. Pleadings were ordered. There were claims and counterclaims. The case was tried by Deputy Judge Longley resulting in a judgment in the applicant's favour for $82,356. There was no award of costs in his favour but because the respondent succeeded in its counterclaim (which substantially reduced the award in the applicant's favour) the respondent was given the costs of the counterclaim.
The proceedings at first instance
5. At the hearing before Deputy Judge Longley the applicant was unrepresented. Amongst the various heads of claim in his statement of claim he sought an award under s31R of the Employment Ordinance, Cap 57, for long service payment. Under s31R(1)(a) an employee who has been employed under a continuous contract for not less than the number of years of service at the relevant date, as specified in the Fifth Schedule to the Ordinance, is entitled to long service payment. Where the contract of employment is terminated by payment in lieu of notice in accordance with s7, the "relevant date" is defined in s2 as the date up to which the wages are calculated: in the present case, it would be...