Wu Sek Yiu v. Perfection Security Company Ltd
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DCEC 103/2026 [2026] HKDC 1578 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 103 OF 2026 -------------------------
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------------------------- DECISION ------------------------- BACKGROUND 1.The Applicant Mr Wu Sek Yiu (“A”) met an accident and sustained injuries on 13 March 2024 in the course of his employment with the Respondent Perfection Security Company Limited (“R”) working as a security guard. 2.He commenced this action by filing the Application (“EC Application”) [1-10] on 20 January 2026 and sues in his employer R for employees’ compensation under the Employee Compensation Ordinance, Cap 282 (“ECO”). THE 2 SUMMONSES 3.There were 2 summonses before this Court:
4.Mr Bache Sit of counsel appeared for A. 5.R was represented by Ms Fanny Chan of Messrs Winnie Leung & Co. THE LEGAL PRINCIPLES 6.In regard to R’s Summons, there being no provisions on striking out in the ECO or the Employees’ Compensation (Rules of Court) Rules, Cap 282B, Order 18 rule 19 of the RDC should be applicable: see Li Kwok Shing v Law Ka Fu & Another [2003] 3 HKLRD 173 at §54. 7.O18 r19(1) of the RDC provides as follows:
8.The legal principles on striking out proceedings are trite and need no elaboration. They are succinctly summarised in Hong Kong Civil Procedure 2026 at §18/19/4 as follows:
9.As stated in Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35 §§27-28 per Recorder Fok SC (as the Hon Fok J of CFA then was): “… the categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material… The Court’s jurisdiction to strike out is, of course, discretionary and is only to be exercised in plain and obvious cases”. 10.As to the question whether to extend the time within which to appeal against the Form 9 out of time, the factors relevant to the exercise of the court’s discretion, “if it thinks fit” as provided in s18(2) of the ECO, are summarised in the often cited Court of Appeal judgment of Chung Sau Ling v Million Join Ltd [2003] 4 HKC 561 (§16):
AFFIRMATIONS FILED 11.The following affirmations were filed by the parties in support/opposition of the 2 Summonses:
12.Regarding the evidence adduced, it is expressly stated in A’s Affm that the document shall also be treated as an affirmation in support of A’s Summons. [35/§16] 13.Likewise, R’s Affm 2, other than as an affirmation in reply, contains also arguments in opposition to A’s Summons. 14.Pausing here, it should be pointed out that these affirmations, all deposed by the handling solicitors for R and A, are inappropriate. They contain mainly legal submissions and arguments which have no place in an affidavit/affirmation. 15.The court has repeatedly given reminders to legal practitioners that an affidavit/affirmation may contain only such facts as the deponent is able of his own knowledge to prove. (See O41 r5 RDC; Hong Kong Civil Procedure 2026 Commentary 41/5/1) It is not appropriate for the legal representatives, other than perhaps giving evidence relating to their conduct of the action, to depose facts and evidence of which only the parties themselves have personal knowledge and would be capable of giving. 16.A’s Affm in particular, other than exhibiting some sick leave certificates and receipts on sick leaves granted to and medical expenses incurred by A after issue of the Form 9, provides nil evidence required to enable the court to consider the reasons, if any, for A’s delay and not appealing against the Form 9 within the 6-month period prescribed under s18(2) of the ECO. 17.I have considered the affirmation evidence, the parties’ skeleton submissions and their submissions made at the hearing. R’S ARGUMENTS 18.In support of R’s Summons filed on 11 May 2026, the ground for striking out, in gist, is that it had duly paid A (i) all compensation to which he was entitled under s9 and s10 the ECO in accordance with the Certificate of Compensation Assessment/Form 5 issued on 4 February 2025 (“Form 5”) [56], plus (ii) fully reimbursed medical expenses under s10A (up to the date of the Form 5). The Form 5 compensation was assessed based on the Form 9, against which A had not lodged an appeal (until much later on 5 June 2026 per A’s Summons). 19.R therefore argues that upon R’s payment, A’s rights and entitlements under the ECO in respect of the Accident had extinguished. The cause of action had been exhausted. This action for further employees’ compensation is frivolous and vexatious, and amounts to an abuse of the process of the court hence should be struck out. A’S ARGUMENTS 20.A argues on the other hand that contrary to the Form 9 which certifies the sick leaves up to the date of review assessment that took place on 16 January 2025, he was in fact granted continuous sick leaves after the review assessment date as from 17 January 2025 continuously and until now. The most recent sick leave certificate as this Court was informed at the hearing was issued on 13 August 2026 for a further 3 months until sometime in November 2026. Hence A should still be entitled to claim further compensation in this action for the unpaid sick leaves granted and medical expenses incurred after 16 January 2025 under s10 and s10A of the ECO. 21.A’s primary position, as submitted by A’s counsel Mr Sit, is that it was not necessary or obligatory for A to appeal against the Form 9 (in opposing R’s Summons), because the absence of an appeal would not diminish R’s responsibility to make periodical payments under s10(1) and (2) of the ECO. 22.A should, even without an appeal out of time, be allowed to proceed this action as the court would still be entitled to exercise its discretion upon considering all evidence at trial to award compensation under s10 and s10A in respect of further sick leaves granted and medical expenses incurred beyond the date of the Form 9. 23.A’s fallback position, should the above arguments not be accepted, is A’s Summons seeking extension of time to appeal against the Form 9. The only reason given by A for the delay in not appealing within the 6-month time limit, as stated in A’s Affm, “is due to oversight and misunderstanding of the ECO” of A’s solicitors [34/§15]. RELEVANT EVENTS/EVIDENCE 24.As pleaded in the EC Application [3/§3(c)], A met an accident on the first day of work on 13 March 2024 as a security guard with R. He allegedly tripped and fell when walking past the atrium floor of Nina Mall in Tsuen Wan, New Territories, Hong Kong thereby sustaining injuries including “avulsion fracture of the triquetrum at the right wrist; left elbow tenderness; bilateral knees contusion; and right knee pain, weakness, and stiffness” (“Accident”). 25.The following events and evidence, which are largely undisputed, are relevant to the court’s consideration of the 2 Summonses:
DISCUSSION A’s Summons 26.I first consider A’s primary position that an appeal against the Form 9 under s18(2) is not necessary because R would remain responsible for making periodical payments under s10(1) and (2) of the ECO. 27.Mr Sit relies on the judgment of HHJ Chow in Tsang Ho Leung v So Ka Kit, formerly trading as Tak Lee Engineering Company & Anor (DCEC 662/2009, unreported, 3 September 2009) to argue that the Form 9 was correct insofar as it only certifies sick leave up to the date of review. This is because the Medical Board on the date of the review on 16 January 2025 could only certify the sick leaves granted to A up to that date, but not further sick leave which had been granted beyond the assessment date or might be granted in future. Hence there was nothing incorrect in the Form 9 to appeal against. 28.In that case, the employee’s s18(2) appeal and application for cancellation of the certificate of compensation assessment (Form 5) issued in that case out of time were dismissed upon the court’s finding that the review certificate (Form 9) issued in that case was correct insofar as the setting out of the periods of absence from duty up to the date of review. The s18(2) appeal therefore had no merits and was dismissed. 29.The judgment of Tsang Ho Leung (supra) should not, in my view, be interpreted to mean that it is not necessary to lodge an appeal against a certificate of assessment/certificate of review of assessment in cases where further sick leaves are granted beyond the assessment date, for this would have the effect of rendering the whole appeal regime and procedures expressly provided in s18 of the ECO obsolete. 30.This also contradicts s16H of the ECO which provides that the Medical Board assessments and certificates shall be evidence of the matters stated therein. It is trite that such evidence can become conclusive through the appeal procedure not being invoked. The assessment is to be final unless appealed against within the period prescribed under s18 ECO. (See Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231 (CA) at p 1236H to I; and Leung Shui Cheong v Au Chung Yin Jimmy [2023] HKCA 963 at §§49-50) 31.In my view, A’s primary position and interpretation that an appeal against the Form 9 is not necessary would defeat the legislative intent of enhancing certainty and quick relief of compensation under the ECO. 32.Mr Sit also refers to the judgment of Tsui Wai Ho v Pride Glory Limited trading as Ziti’s (DCEC 1791/2015 & DCPI 1699/2016, unreported, 23 May 2019) in which the court, in assessing s10 employees’ compensation, accepted the additional 17 days of sick leave granted beyond the certificate of review of assessment despite no appeal. The hearing in that case, unlike the present case, was a trial on quantum (of both the employees’ compensation action and the related common law action) during which the court had before it and considered all relevant medical evidence to which full weight was given (at §32). It is distinguishable from the present case. The court in that case did not elaborate or give reasons for the decision to deviate from the sick leaves certified in the certificate of review of assessment in assessing s10 compensation under the ECO. I do not find the judgment supportive of A’s primary position that an appeal would not be necessary where sick leaves are granted beyond a Medical Board assessment certificate. 33.A further argues that the Form 9 and the Form 5, even without an appeal, should not preclude A’s further claims for compensation under s10 given the assessments were conducted prematurely when A was still seeking treatment and being granted continuous sick leaves. 34.There is no evidence to substantiate A’s complaint that the Medical Board assessments were conducted and the Form 7 and the Form 9 were issued prematurely in the present case. 35.I accept on the other hand R’s submission that the Labour Department has a system of elaborate procedures for medical clearance which injured employees would go through before Medical Board assessments are arranged for the issuance of certificates of (review of) assessment. It is also a general understanding and observation that Medical Board assessments would normally take place after the injured employees’ injuries/medical conditions have become stabilised. 36.I however do accept Mr Sit’s submissions that even in the absence of an appeal under s18(2) ECO or where such an appeal is not allowed, it would not automatically mean that A’s action herein should be struck out, as sought by R. An appeal or grant of leave to appeal out of time against the Form 9 at this stage is not a pre-condition for A to proceed this action. 37.As shown in the cited authorities, A could have filed a Notice of Appeal against the Form 9 out of time to make known his intention to appeal as soon as possible, and for the substantive appeal to be argued and dealt with at the time of trial. By then the court would have before it all the relevant evidence and medical evidence to enable an informed and considered decision on the matter. Even absent an appeal, the court may, as argued by Mr Sit, still retain residual discretion in assessing section 10 compensation under s10(1) and (5) at trial. 38.This is in line with the comments of HHJ Chow in Tsang Ho Leung (supra) at §23, whilst dismissing the employee’s s18(2) appeal, that “The actual impact (of the injury) is not merely reflected by the review certificate but it was also reflected in the further medical certificates issued by registered medical practitioners in the form of sick leave certificate issued after the review; so it is not correct to take the review certificate as the only conclusive evidence to the exclusion of other documents issued by a medical practitioner or a registered dentist mentioned under (s10(2))…” 39.It is thus implicit that despite leave to appeal or cancellation out of time was not granted, the court would still be entitled to consider evidence of further sick leave certificates for the actual impact of the injury to the employee when assessing compensation under the ECO subsequently. 40.There is an abundance of authorities in support of the proposition that the conclusive “period of absence from duty” certified in the Medical Board assessment certificates should not restrict the court’s unfettered discretion to assess compensation with reference to the “period of total temporary incapacity” under s10(1) and (5) in view of the “rebuttable” deeming presumption under s10(2) : see Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 (CA) at §§23-27, Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2001] 2 HKLRD 803 (CA) at 807F to H, and applied in Wong Kai Fun v Sun On Logistics Ltd (unreported, DCEC 5/2013, 20 May 2015) at §65. 41.In this regard and for the purposes of A’s Summons, it would not be necessary for me to consider further or elaborate on the exercise of the court’s discretion in assessing s10 compensation in light of the evidence of further sick leaves beyond the Form 9 in the present case. A detailed analysis on the issue with illustration of authorities is set out in the recent judgment of this Court in Li Kai Yin v Studiodanz Co Ltd (DCEC 338/2024) at §§77-89. 42.Suffice it to conclude that A should not be shut off at this stage from putting forward a claim beyond the Form 9, whether or not he has appealed against the same, upon proof of further sick leaves and where they are shown to be related to or necessitated from the injuries sustained in the Accident. I accept A’s primary position to the extent that the court retains a discretion under s10 of the ECO, conditional upon the evidence adduced. 43.I now turn to A’s fallback position, ie A’s Summons for extension of time to appeal against the Form 9 under s18(2) by reference to the factors stated in Chung Sau Ling (supra). 44.A’s counsel confirmed his position at the hearing upon this Court’s question that A would rely on the only affirmation from his solicitor (A’s Affm) and proceed with the substantive arguments hearing. Length of Delay 45.The deadline for appealing against the Form 9 was 6 months from its date of issue, ie by 27 July 2025. The appeal by way of A’s Summons filed on 5 June 2026 is more than 10 months out of time. 46.The length of delay cannot be said to be insubstantial. Reason for the Delay 47.In seeking leave to appeal against the Form 9 out of time, the burden is on A to show that there were reasonable explanations for the delay for the entire period, in particular during the 6-month period allowed for the appeal. Evidence shows that the letter of demand from A’s solicitors to R was dated 7 August 2025. The legal representatives’ alleged mistake or oversight as submitted now did not come into play during the 6-month limitation period. 48.One would have thought that A should at least explain the circumstances and reasons for his inaction during those 6 months, his acceptance of R’s payment made in accordance with Form 5, whether he had chased R for further periodical payments after R had stopped paying him following issue of the Form 9, why he had made no objection to the Form 5 and whether he had knowledge as to whether R’s payment was made in full satisfaction or settlement of his claim for the Accident, etc. 49.A has not given any evidence. The only evidence before this Court is A’s Affm deposed by his solicitor. There is nil evidence from A, upon which the court can consider and exercise it discretion, on any reason for the delay or explanation for him not lodging an appeal against the Form 9 within time. Merits 50.As to merits, on the present available evidence, limited to the stack of medical certificates issued by many different hospitals and clinics covering sick leaves from 17 January 2025 to 12 August 2026, despite for the diagnosis of “right wrist and knee pain” [115-169], and a stack of medical appointment slips [170-184] but without any evidence or medical evidence as to their relevance to A’s claims herein or causal relationship with the Accident, I cannot come to any considered view as to the likely chance of success of A’s purported claims for further s10 compensation and s10A medical expenses beyond the Form 9. 51.As pointed out in §35 hereinabove, it should be reasonable to assume that A had gone through the normal medical clearance procedures before Medical Board assessment and review were arranged and conducted in commissioning the Form 7 and the Form 9. 52.Mr Sit relies on the often cited CA judgment of Chung Sau Ling (supra) to argue that A’s Summons should be allowed: In that case the Court of Appeal accepted the reason given by respondent’s counsel during the appeal hearing that the respondent’s failure to lodge the appeal within time was due to the oversight of the solicitors. The lower court’s decision to allow the respondent’s s18(2) appeal out of time was upheld. 53.The decision in Chung Sau Ling (supra) was premised mainly on merits and based on the medical evidence already adduced. In that case the respondent had always made known to the applicant its intention to appeal against the certificate of review of assessment out of time, and for those purposes, had adduced medical expert evidence. The Court of Appeal upon considering merits of the appeal in particular the medical expert evidence, together with the reason for delay given by the respondent’s counsel at the appeal hearing, upheld the lower court’s decision granting leave and dismissed the applicant’s appeal. 54.Chung Sau Ling (supra) is therefore distinguishable from the present case which has not yet proceeded to discovery. The medical certificates and receipts dated beyond the Form 9 in the present case do not in my view per se support merits of A’s further claims in this action. I do not accept Mr Sit’s submission that A must be taken to have a great chance of success in his further claims under s10 and s10A of the ECO solely on the basis of the continuous sick leaves granted and A’s further medical expenses incurred beyond the date of the Form 9. Prejudice to R 55.Ms Chan for R submits that it would suffer prejudice if A’s Summons is allowed given (i) R had already paid full compensation according the Form 5; (ii) R had pleaded its Answer on the basis of no appeal against the Form 9; (iii) R had specifically pointed out earlier to A’s solicitors the absence of appeal yet A’s Summons was issued much later on 5 June 2026; and (iv) A’s positions, namely “an appeal is not necessary” yet “issuing A’s Summons for an appeal out of time as a fallback position”, are contradictory. 56.There is no substance in these arguments; I find no real prejudice to R demonstrated. 57.Despite no real prejudice to R, having considered other relevant factors in particular the absence of evidence from A on the reason for delay or in support of merits, I am driven to the conclusion that leave should not be granted as sought in A’s Summons. 58.A’s Summons for extension of time in which to appeal against the Form 9 should be dismissed. 59.However, the refusal of leave would not automatically mean that A should not be allowed to proceed this action. I would next consider R’s Summons to strike out. R’s Summons 60.R’s Summons to strike out the EC Application herein under O18 r19 is premised on the conclusiveness of the Form 5 and the Form 9, and the full payment by R in accordance therewith, hence A’s rights under the ECO, in R’s arguments, had extinguished. 61.Ms Chan argues that as A had been fully paid his entitlements under the ECO prior to the commencement of this action, there leaves no cause of action nor matters to be determined by the court. A’s action herein therefore discloses no reasonable cause of action, is obviously frivolous or vexatious, and is an abuse of the process of the court, and should be struck out. 62.A’s pleaded case is that he had sustained injuries including right wrist fracture and bilateral knees contusion in the Accident. The Form 7 and the Form 9 certify right wrist and knee pain, stiffness and weakness. 63.Evidence shows that further continuous sick leaves were granted immediately after those certified in the Form 9, from 17 January 2025 up to 12 August 2026 [115-169] in respect of the diagnosis of “right wrist and knee pain”, apparently of the same body parts injured in the Accident. 64.Following from my analysis set out in paras 36 to 40 hereinabove and in the light of the undisputed evidence of further continuous sick leaves and medical appointments beyond those certified in the Form 9, the court’s exercise of discretion under s10(1) and (5) of the ECO may be called for when assessing compensation subsequently. I accept Mr Sit’s arguments on this issue advanced in his primary position. 65.A should not be precluded from adducing evidence including medical expert evidence as the action proceeds to substantiate his further claims under s10 based on further sick leaves granted and s10A for the further medical expenses incurred. 66.This is in my view a case where the legal viability of the cause of action is sensitive to facts, namely whether the further sick leaves granted beyond the Form 9 were necessitated by the injuries sustained by A in the Accident. An order to strike out should not be made. 67.I am driven to the conclusion that this is not a plain and obvious case in which the court should exercise the discretion to strike out A’s action now. R’s Summons should be dismissed. COSTS 68.There is no reason why costs should not follow the event. 69.A should have costs of R’s Summons. 70.R should have costs of A’s Summons. 71.As the 2 Summonses were heard and dealt with together on common evidence adduced and inter-related arguments, I consider it reasonable to make no order as to costs. ORDER 72.I therefore make the following Order:
73.The above costs orders stated in paras 69, 70 and 72(3) are nisi. In the absence of application from any party to vary the costs orders within 14 days by written submissions, the costs orders nisi will become absolute. 74.Any application for variation of costs orders nisi will be dealt with on paper, unless any parties requests for an oral hearing. 75.Further to my decision herein, direction is hereby made for the parties to submit a joint written application to the EC Judge within 28 days from the date hereof to seek further case management directions to proceed the action. 76.I thank the parties for their assistance.
Mr Bache Sit, instructed by Eric Yu & Co, for the Applicant Ms Fanny Chan, of Winnie Leung & Co, for the Respondent | ||||||||||||||||||||
Cases cited in this judgment