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Lam Sin Yi Sindy v Leung King Wai William T/a William K W Leung & Co

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
Judgment Date18 May 2021
Neutral Citation[2021] HKCA 720
Year2021
Judgement NumberCAMP184/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP184A/2020 LAM SIN YI SINDY v. LEUNG KING WAI WILLIAM t/a WILLIAM K W LEUNG & CO

CAMP 184/2020

[2021] HKCA 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2020

(ON AN INTENDED APPEAL FROM HCME NO 4 OF 2019)

________________________

BETWEEN

LAM SIN-YI SINDY (林倩頤) Claimant
and
LEUNG KING-WAI WILLIAM t/a WILLIAM K W LEUNG & CO
(梁景威經營梁景威律師事務所)		 Defendant

________________________

Before: Hon Kwan VP and Yuen JA in Court
Dates of Written Submissions: 5 October 2020 and 7 December 2020
Date of Judgment: 18 May 2021

________________________

J U D G M E N T

________________________

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

1. This is an application of the defendant employer (“the Employer”) for leave to appeal against the judgment of Mimmie Chan J on 29 September 2020 (“Judgment”)[1].

2. The leave application was made pursuant to section 33 of the Minor Employment Claims Adjudication Board Ordinance, Cap 453[2]. Section 33(2) provides that the Court of Appeal may grant leave to appeal “if it is satisfied that a question of law of general public importance is involved”.

3. The judge had previously granted leave to the claimant employee (“the Employee”) to appeal against the decision of the adjudicating officer of the Minor Employment Claims Adjudication Board (“the Board”) of 4 November 2019 on a question of law, pursuant to section 31[3]. By the Board’s decision, it was held that the Employer had not summarily dismissed the Employee but on the contrary it was the Employee who had resigned without giving notice of seven days as required under the employment contract. Hence, the Employer was entitled to deduct seven days’ wages of $4,316.67 and the Employee’s claim of the said sum was dismissed.

4. The question of law formulated by the judge for which leave to appeal was given was as follows:

“Whether, in determining the facts and construing whether the words and actions of the Employee constituted resignation, the Board should have considered the entire context and circumstances of the dialogue between the Employer and the Employee, and not merely the literal meaning of the words used.”

5. The appeal scheduled before the judge in September 2020 was disposed of on paper. The Employee’s counsel, Mr Jeff Yau, referred the court to a line of authorities[4] in support of these propositions of law:

(1) A person’s intentions are ordinarily ascertained not by reference to his subjective intentions but objectively, by reference to how a reasonable man would interpret them.

(2) There must be clear and unequivocal conduct and words which evince an intention of a party to treat the contract as terminated, for a finding to be made that that party has treated the contract as irrevocably discharged.

(3) Recognition is given to “special circumstances” in the field of employment, in that personalities constitute an important consideration in labour relations. Examples of “special circumstances” are where words or actions are expressed in anger or in the heat of the moment, or where a person is under extreme pressure and being jostled into a decision. Where “special circumstances” arise and the words and conduct of an employee evincing an intention to resign are not unambiguous, it may not be reasonable for the employer to accept the employee’s words and conduct forthwith at face value without further inquiry or the lapse of a reasonable period of time. In so acting, the employer runs the risk that the intention to resign was not the correct interpretation when the facts are judged objectively in the entire context.

6. The Employer’s counsel, Mr Kenneth Lam, did not dissent from the above propositions of law. The judge held that the Employee’s words and conduct were ambiguous in all the circumstances and, objectively considered, could not properly and reasonably be construed by the Employer as resignation. She held that the findings of the Board that the Employee had resigned were made under an error in the interpretation and application of the law[5].

7. There was no dispute before the judge that the Board’s decision should be set aside[6]. The only dispute was whether (as submitted by the Employer)the matter should be remitted to the Board for further directions and/or reconsideration, with costs of the appeal to be reserved to the Board, or whether (as submitted by the Employee)the matter should be decided by the court on the facts and evidence already presented to the Board and applying the relevant legal principles.

8. The judge agreed with the Employee and held that it was not necessary to remit the matter to the Board for reconsideration. On the facts and evidence presented to the Board[7], she held that the only reasonable and legitimate conclusion is that there was no unambiguous resignation by the Employee and there was no effective acceptance of any repudiation of contract by the Employer. Instead, by requiring the Employee to leave, she was effectively dismissed[8]. The judge referred to sections 32(1) and (2), which empower the court to allow the appeal, and to draw any inference of fact. She held that by allowing the appeal, the court only reversed “the erroneous finding on law made by the Board, that the Employee had resigned”, and there is no finding of primary fact made by the Board that is reversed[9]. She therefore allowed the appeal under section 32(1)(a) and ordered that the Employer should repay to the Employee the sum of $4,316.67 wrongly deducted from her wages[10].

The application for leave to appeal

9. The relevant provisions in section 32 read as follows:

“(1) On an appeal for which it has granted leave under section 31, the Court of First Instance may –

(a) allow the appeal;

(b) dismiss the appeal; or

(c) remit the matter to the Board with such directions as it may think fit, which may include a direction to the Board for a new hearing.

(2) On an appeal for which it has granted leave under section 31, the Court of First Instance may –

(a) draw any inference of fact; and

(b) make such order as to costs and expenses as it may think fit,

but may not –

(i) reverse or vary any determination made by the Board on questions of fact; or

(ii) receive further evidence.”

10. In the summons issued by the Employer on 5 October 2020 for leave to appeal against the Judgment, the question of law said to be of general public importance for the purpose of section 33(2) is formulated as follows:

“Whether a determination on the issue of ‘resignation’ was a determination on a question of fact or a determination on a question of law for the purpose of Section 32(2)(i) of the Minor Employment Claims Adjudication Board Ordinance (Cap 453).”

11. The following grounds of appeal were advanced in the draft notice of appeal annexed to the summons:

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