Wu Liyang v. Shun Cheong Industrial (HK) Co Ltd and Another

DCEC 669/2015

[2018] HKDC 1494

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 669 OF 2015

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IN THE MATTER OF AN APPLICATION BETWEEN

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D E C I S I O N

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1.This is an application by the applicant (Mr Wu) applying for leave to commence these proceedings out of time, pursuant to section 14(4) of the Employees’ Compensation Ordinance.

2.These proceedings are concerned with an accident that happened to Mr Wu on 18 December 2012.  According to the application, Mr Wu met with an accident allegedly arising out of and in the course of employment while he was employed by Shun Cheong Industrial Company Limited.  By a subsequent amended application, a 2nd respondent in the name of Mr Wong William Hon Lam was added.

3.This application was instituted on 1 April 2013. Hence, it cannot be disputed that, in accordance with section 14(4) of the Ordinance, the time limit for the commencement of the proceedings had expired for more than a year.  Hence this application.

4.According to the affirmation in support filed by Mr Wu’s Legal Aid-assigned solicitors, in fact, before the present proceedings, Mr Wu had first instituted earlier Employees’ Compensation proceedings. They were not against the present respondents, but against another party in the name of “Bena Global Limited”. He was within time.

5.Within the two years’ limitation period, Mr Wu, on 28 February 2014, issued an Employees’ Compensation application against Bena, with the case number DCEC 418/2014.  The only respondent in those proceedings was Bena.  Subsequently, in the earlier proceedings, upon inspection of documents disclosed in discovery, it was then discovered that Bena was not the employer.  The mistake was due to a misrepresentation made in a name card given to the applicant (Mr Wu), in which it was stated that a Ricky Li was a staff of Bena. This led Mr Wu into believing that his employer at that time was Bena.

6.However, through the subsequent discovery, it was discovered that in fact Ricky Li was not related to Bena, but was actually related to the present 1st respondent, Shun Cheong.

7.Through the documentary discovery in the earlier proceedings, the applicant, and after counsel’s advice had been obtained, the Legal Aid certificate in the earlier proceedings was amended by the Legal Aid issuing an extension of Legal Aid certificate to allow him to discontinue the 2014 application and to commence a new claim. Hence, on 1 April 2015, after the extension of Legal Aid certificate was granted to Mr Wu, the present 2015 proceedings were filed. On 13 April 2015 a consent order was filed in the earlier 2014 application to discontinue those proceedings.

8.On behalf of the applicant, it was submitted that, the applicant, under these circumstances, has shown reasonable excuse in explaining his delay in not commencing the present proceedings within time.

9.In paragraph 10 of Miss Ho’s affirmation in support, Miss Ho, on behalf of the applicant, put forward five reasons for the delay. 

10.Firstly, the delay was caused and occasioned by the misrepresentation made by Mr Ricky Li of Shun Cheong. The present 2nd respondent (Mr William Wong) referred to Mr Ricky Li as a person connected with Bena when the latter was introduced to Mr Wu.

11.Secondly, when the earlier 2014 application was commenced against Bena, it was commenced within the limitation period.  The mistake about Bena not being the employer was only discovered upon discovery of documents.

12.Thirdly, Mr Wu had reasonable grounds in believing that when he commenced the earlier proceedings Bena was his employer.

13.Fourthly, the identity of the real employer (that is, Shun Cheong) was discovered only when Mr Wu’s solicitors had had the opportunity of reviewing the documents disclosed by Bena upon discovery in the earlier 2014 application.

14.Lastly, it was submitted that the 1st respondent in these proceedings, Shun Cheong, had all along had knowledge of Mr Wu’s subject accident and would have been likely to have knowledge of the applicant’s intended Employees’ Compensation claim against it. It is therefore submitted that the present respondents have not been prejudiced by the delay.

15.After having considered the circumstances leading to the delay in this application that I have summarised above, I accept the submissions made by Ms Ho on behalf of the applicant.  I am satisfied that the applicant has put forth reasonable excuse to explain the delay.

16.For these reasons, I grant leave to the applicant to commence these proceedings, bearing particularly in mind that neither the 1st respondent (Shun Cheong) nor the 2nd respondent (Mr William Wong) has filed any evidence in opposition to this application nor appeared in these proceedings despite having been served with the summons together with the supporting affirmations.

17.For these reasons, I agree with Miss Ho that there is no prejudice caused to either of the respondents by these late proceedings.  I therefore make an order in terms of paragraph 1 of the summons.

Ms S M Ho of Ho & Associates, assigned by the Director of Legal Aid, for the applicant

The 1st and 2nd respondents, being unrepresented, absent