Poon Hau Kei v. Hsin Chong Construction Co. Ltd. and Others

FAMV000006/1999

FAMV No. 6 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 6 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 214 OF 1998)

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Appeal Committee: Mr Justice Litton Ag CJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 9 July 1999

Date of Determination: 9 July 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. Some years ago the Kowloon and Canton Railway Corporation ("the KCRC") was extending and renovating its station in Hung Hom. It appears that the scaffolding works were being done by a Mr Ho Shui Keung trading as Keung Kee Scaffolding Eng. This applicant alleges, while Mr Ho denies, that he was one of Mr Ho's employees.

2. On 5 January 1996, while engaged in those scaffolding works, the applicant was injured in an accident. On 17 December 1997 he took out an application for employees' compensation under the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance"). Initially his application for employees' compensation was against Mr Ho alone. Then, by a summons taken out on 25 April 1998, he applied to join this respondent in order to claim against it too.

3. In so doing, the applicant relied on s.24(1) of the Ordinance which provides that:

" Where any person (in this section referred to as the principal contractor), in the course of or for the purposes of his trade or business, contracts with a sub-contractor for the execution by or under the sub-contractor of the whole or part of any work undertaken by the principal contractor, the principal contractor shall be liable to pay to any employee employed by that sub-contractor or by any other sub-contractor in the execution of the work any compensation under this Ordinance which the principal contractor would have been liable to pay if that employee had been immediately employed by him ..."

4. The position appears to be as follows. Under a management contract, the respondent became the KCRC's management contractor. Under a works contract, the respondent let the fire installation works to General Engineering (HK) Co. Ltd ("GE"). There is a dispute as to whether the respondent did that in its own right or merely as agent for the KCRC. The fire installations works involved scaffolding works. GE contracted with Mr Ho for him to carry out such scaffolding works.

5. His Honour Judge To took the view that the applicant's claim against the respondent in reliance on s.24(1) of the Ordinance was tenable. By his order dated 6 August 1998, he permitted the applicant to join the respondent.

6. The Court of Appeal (Nazareth VP and Mayo and Rogers JJA) thought otherwise. They took the view that it was clear beyond reasonable argument to the contrary that the management contract did not involve the respondent undertaking any works, and that it was not the principal contractor.

7. The applicant seeks our leave to appeal to the Court of Final Appeal. The objective is always speedy and economical justice to be arrived at by the most direct route possible. That being so, interlocutory appeals - especially to the highest court - are generally regrettable. But they are sometimes unavoidable. Is this such an instance?

8. The position in regard to employees' compensation under arrangements of this sort is a matter of great general or public importance. And the judge's view is, after all, no more than that the claim against the respondent is tenable. We think that it is reasonably arguable that the judge's view is warranted.

9. Shortly stated, why we think so is as follows. Article 1 of the respondent's management contract with the KCRC states that the respondent's duties under that contract include "securing the carrying out and completion of the project". The first recital of the respondent's works contract with GE states that the respondent has entered into the management contract to "have [the project] executed". Article 1.1 of that works contract requires GE to "carry out and complete" the fire installation works of the project. The scaffolding works in question were for those works. In such circumstances, we feel unable to shut out the applicant's argument.

10. Accordingly we grant the applicant leave to appeal to the Court of Final Appeal. The costs of this leave application will be costs in the appeal.

11. The accident happened 3 1/2 years ago. But we now find ourselves having to send the case to the highest court on the interlocutory question of whether someone may be joined as a party against whom employees' compensation is claimed. We are duty-bound to do so in such a way that the final appeal does not operate to defeat or seriously diminish the practical justice which it is the business of our legal system to deliver. In the exercise of our inherent jurisdiction to carry out that duty, we make the following procedural directions, which are unaffected by vacation:

(1) The time for the respondent to enter an appearance as prescribed by rule 20(1) of the Hong Kong Court of Final Appeal Rules is abridged to 3 days.

(2) The time for the appellant to file his printed case as prescribed by rule 25(1) of those Rules is abridged to 20 days.

(3) The time for the respondent to file its printed case as prescribed by rule 26(1) of those Rules is abridged to 14 days.

Representation:

Mr Neville Sarony SC and Mr John Kerr (instructed by Messrs Fung, Wong, Ng & Lam & assigned by D.L.A.) for the applicant.

Ms Audrey Eu SC and Mr Horace Y.L. Wong (instructed by Messrs Cheng, Yeung & Co.) for the respondent