Gurung Umesh v. W. Ho Civil Engineering & Construction Co. Ltd.

DCEC001040/2000

DCEC1040/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1040 OF 2000

Coram: H H Judge Carlson in Court

Date of Ruling: 11 April 2002

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R U L I N G

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1.This is an application by the applicant for leave to appeal out of time against a certificate of assessment made by the Employees Ordinary Assessment Board. The date of the certificate is 15 November 1999. Once that certificate was issued, there were two options available to the applicant. Within 14 days he could have objected, which he did not do. Had he objected, then the matter could have been reviewed.

2.In any event, he then had six months, which of course expired on 15 May 2000, to appeal against the certificate and he has not done that. Hence this application to the court today.

3.He was injured, it is said, in the course of his employment on 29 December 1998 and he applied for employees compensation by an application dated 4 December 2000 and that is some 31/2 weeks before the expiry of the two year limitation period. But he is 7 months out of time in appealing against the certificate so what should be done?

4.The applicant is from Nepal. I accept from him that he speaks very little English, he cannot read it, and precious little Cantonese, and he certainly cannot read that. He, like so many of his countrymen, came to Hong Kong to find employment on construction sites and he was fortunate to have his father here who was a gentleman who does speak English and he has been able to interpret for him as and when required.

5.The point that is made on his behalf is that when he was assessed by the board, he simply could not understand what was going on because he had insufficient English or Cantonese. The board has been asked to express its view on the matter by the respondent's solicitors and they have supplied a letter explaining their usual procedure and, as one might expect, it is a sensible procedure. There is no specific recollection in this particular instance as to whether the applicant had brought an interpreter with him at the hearing. The usual course taken by the board is if there is difficulty in communication, then they will adjourn the matter and instruct the person who is being assessed to come back on another appointed date and to come back with an interpreter.

6.What the applicant says is at this time, and this is supported by his father's passport entries, his father was not in Hong Kong. Subsequent to the oral procedure which takes place in an assessment involving the board and the applicant, the board then deliberates and issues its certificate which, as I say, it did on 15 November 1999. The applicant says he simply did not appreciate the importance of the certificate. He knew absolutely nothing about the appeal time limits. He only realised all of this when later on in the year he went to see the Legal Aid Department who assisted him in preparing the application under section 18A. The one which has been filed in good time and which is dated 4 December.

7.So this is one of these perhaps more curious cases because what usually happens is an application is filed and it is only after the filing of the application that the certificate of assessment is known. On this occasion, we have got an application properly before the court. The certificate of assessment was issued well before the application was made and because of course there is only a six month time limit for appealing such a certificate, he finds himself out of time on that whereas at the same time he has got a perfectly valid and timeous application for employees compensation before the court.

8.I come to the conclusion that I ought to give him leave to appeal. I cannot be certain, and I really would have to be certain, that he really understood the import of the situation, that he understood the document. He is a young man. He was only 22 at the time, a recent newcomer to Hong Kong. The way of life here, I say this with great respect, is much more sophisticated than I suspect it is in Nepal and it simply would not be fair to shut him out, in these sort of circumstances, from an appeal when, as I say, he has in any event got a perfectly valid application afoot. So let him appeal against the certificate. The court will then have everything before it and it can then decide the matter on its merits.

9.For all those reasons, I am going to allow the appeal.

10.He has had to come to court to make the application. He who is late, although it is not an invariable rule, it is the usual rule, must pay. He has put himself in this position. I know I have not found fault on his behalf, and I bear that very much in mind, but I really do not think any other order would be fair in the circumstances. So costs to the respondents in any event. These are the costs of and occasioned by this summons. Legal aid taxation of the applicant's costs.

Representation:

Present: Ms Wong, of Messrs Cheung, Chan & Chung, assigned by the Legal Aid Department, for the Applicant

Ms Phoebe Kang, of Messrs Deacon, for the Respondent