Yip Lai Heung v. 伍炳榮 and Others

DCEC 1252/2016

[2022] HKDC 1060

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1252 OF 2016

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Before:  His Honour Judge KC Chan in Chambers (Open to Public)

Date of Hearing:  22 September 2022

Date of Decision:  22 September 2022

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DECISION

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1.In this decision I will continue to adopt the abbreviations and nomenclatures used in my Judgment handed down on 29 June 2022.

2.In that Judgment, I held that R3 was liable to pay the applicant employees’ compensation in the total amount of HK$256,465 together with interest.

3.The applicant’s application to vary the costs order nisi therein is opposed by R3 and R4 and presently is at the stage awaiting the concerning parties to file their respective submissions.

4.As apparently R3 is entitled to appeal against the Judgment without leave, but he was out of time, R3 by summons dated 9 August 2022 applied to the Court of Appeal for time extension to file his Notice of Appeal.  It is opposed and I am given to understand today that the date of the hearing has not yet been fixed.

5.By summons issued on 12 August 2022, R3 now applies for a stay of execution of the Judgment (including the order for interest and costs) pending his intended appeal.  It is opposed by the applicant and R1.

6.All parties concerned are agreed that the relevant principles and approach in considering whether to grant a stay are set out in the judgment of Ma J (as the Chief Justice then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.

7.Having heard parties, I refuse to grant the stay for the following reasons.

8.Firstly and on my part, I do not think R3’s intended appeal has any reasonable prospect of success.

9.The draft Notice of Appeal is prolix and organized according to 3 findings/holdings which R3 says I should have so found or held, and erred in not having done so, namely, and I am paraphrasing:

(a)  The Proviso should have been applied excepting the applicant as an employee (“Holding 1”);

(b)  The applicant was an employee of R1, R2 or R4, but not R3 (“Holding 2”); and

(c)  The applicant was an independent contractor or sub-contractor, either by himself or in partnership with R1 and R2 (“Holding 3”).

10.Under Holding 1 and despite what I said in §§96 to 98 and 102 of the Judgment in relation to the case of Manton v Cantwell [1920] AC 781, it is now complained that I have “wrongly interpreted, misread, misunderstood and misapplied the Ordinance” in that I failed to consider a short passage by Viscount Finlay at p.790 of the judgment in that case:

“… in my opinion they cannot possibly be supported if they are supposed to lay down the principle that whatever is advantageous for improving a house, or repairing a house, used for the purposes of a business, is an employment for the purposes of the trade or business …”

11.It would be apparent from reading that passage in the context of the judgment that the learned Viscount there merely dispelled the existence of any broad, invariably applicable, general principle and, as I said in §97 of the Judgment, was emphatic that there should be no general rules or general propositions of law.  The learned Viscount then went on and examined and analyzed the facts of that case and found that Manton was not excepted as “a workman” and allowed the appeal (at p.792).

12.In holding that the Proviso did not apply, this court has not sought to apply any general principle or proposition of law but has so held based on the present facts.  This ground of appeal therefore has no merits.

13.In relation to Holding 2 and Holding 3, R3 complains about many detailed findings of fact of this court, about the evaluation and weight given to various indicia showing whether it was a contract of service or contract for service, and also complains that I have not taken into account R3’s role as a director/agent, that R4 was a separate legal entity and the law of agency. They are by and large challenges to my findings of fact.  I do not propose to delve into them here.  All these matters under complaint I have duly considered and have given my views and findings in the Judgment.  I do not consider R3 has any reasonable prospect of success.

14.Secondly, in his affirmation in support, R3 merely said that the enforcement of the Judgment “would result in cash flow problem for me”.  It is a vague statement.  It is not clear what he meant.  There is no evidence proffered to support any allegation that the levying of the execution of the Judgment would cause him any financial ruin or serious financial consequence.

15.Thirdly, R3 said that should he later win the appeal, the applicant might not be able to repay him the judgment sum once the same is paid over to the applicant.  I accept there is some risk in that regard.  However, as Ms Ng mentioned, and not disagreed by Ms Yang, the applicant is legally aided and the Director of Legal Aid has a first charge such that the judgment sum will have to be paid to the Director and the balance would only be released to the applicant after, among others, various costs matters are finalized.  The process would necessarily take months, if not longer.  It would thus allow more than sufficient time for R3 to apply for the stay from the Court of Appeal, which might or might not take a different view as to R3’s prospect of success.

16.Lastly but not least, I would need to consider the effect of a stay on the applicant.  It is common ground that since the Accident occurred in December 2014 he has not received any payment by way of employees’ compensation.  It has been almost 8 years.  Any further delay would mean more than the usual hardship for him.

17.Considering it in the round, this court in the exercise of its discretion finds it inappropriate to grant the stay.  R3’s application is refused.

18.I will now hear parties on costs.

(Submissions on costs)

19.This is a distinct and separate application.  Costs should follow the event and not be made in the cause of the intended appeal (even if extension of time were to be granted).  Costs of this application be paid by R3 to the applicant and R1, and in the case of R1 with certificate for counsel.  The applicant’s and R1’s own costs be taxed according to the Legal Aid Regulations.

Ms Ng Pui Shan, of Szwina Pang, Edward Li & Co, assigned by the Director of Legal Aid, for the applicant

Mr Alfred Cheng, instructed by B Mak & Co, assigned by the Director of Legal Aid, for the 1^st respondent

Wan and Leung, assigned by the Director of Legal Aid, for the 2^nd respondent, absent

Ms Eugenia Yang, instructed by K K Lai & Co, Solicitors, for the 3^rd respondent