CHUNG WO SANG, FUTURE v. TAI LIN RADIO SERVICE LTD

CHUNG WO SANG, FUTURE v. TAI LIN RADIO SERVICE LTD

The Court of Appeal granted leave because the appeal raises a question of law of general public importance: whether on true construction the commission was payable only at the employer's discretion without regard to s.70 Employment Ordinance and contra proferentem, and whether contractual discretion is subject to a...

Source-derived case information.

Citation
CHUNG WO SANG, FUTURE v. TAI LIN RADIO SERVICE LTD
Parties
Claimant/employee: Chung Wo Sang; Defendant/employer: Tai Lin Radio Service Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 December 2003
Case Number
HCMP3042/2003
Procedural Posture
Employment/labour Tribunal Appeal / Renewed Application for Leave to Appeal to Court of Appeal
Outcome
Leave to appeal granted on a question of law of general public importance
Legal Topics
Wages and Commission, Construction of Employment Contracts, Discretionary Bonuses/commission, Employment Ordinance S.70, Contra Proferentem Rule, Judicial Review of Contractual Discretion
Source Language
en
Employment Law Contract Law Statutory Interpretation Appellate Procedure Wages and Commission Construction of Employment Contracts Discretionary Bonuses/commission Employment Ordinance S.70 +2 more

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Parties

Chung Wo Sang

Claimant/employee

Tai Lin Radio Service Ltd

Defendant/employer

Procedural Posture

Employment/labour Tribunal Appeal / Renewed Application for Leave to Appeal to Court of Appeal

Legal Issues

  1. 1 Whether commission forms part of 'wages' for purposes of annual leave, holiday pay and sickness allowance under the Employment Ordinance
  2. 2 Whether commission was payable only at the employer's discretion under the contract documents
  3. 3 Whether s.70 of the Employment Ordinance and the contra proferentem rule should affect construction of the documents

Ratio Decidendi

The Court of Appeal granted leave because the appeal raises a question of law of general public importance: whether on true construction the commission was payable only at the employer's discretion without regard to s.70 Employment Ordinance and contra proferentem, and whether contractual discretion is subject to a rationality standard; the judge below did not address s.70 or contra proferentem and appellate consideration of the Clark principle is required.

Court Disposition

Leave to appeal granted on a question of law of general public importance

Orders

  • Leave to appeal granted on the question formulated in paragraph 15 of the reasons
  • Costs to be in the cause of the appeal