Tsang Kwong Tong v. Tennille Decoration & Design Ltd and Others

HCMP 48/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 48 OF 2006

(On an intended appeal from DCEC No. 645 of 2003)

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BETWEEN

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Before: Hon Tang JA in Chambers

Date of Hearing: 26 January 2006

Date of Decision: 26 January 2006

Date of Reasons for Decision: 9 February 2006

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REASONS  FOR  DECISION

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1.This application concerned an employee’s compensation claim.  The 2^nd respondent, the insurer of the 1^st respondent, was granted leave to be joined as a party.

2.Liability depended on whether the applicant was the employee of the 1^st respondent or the 3^rd respondent.  District Judge Chow gave judgment in favour of the applicant on the basis that he was the employee of the 1^st respondent.

3.The judgment was given on 18 October 2005 and the order sealed on 16 November 2005.

4.By summons dated 12 December 2005 which was accompanied by the draft grounds of appeal, the 2^nd respondent applied for leave to appeal under section 63(1) of the District Court Ordinance.

5.However, under section 23 of the Employee’s Compensation Ordinance, appeal was as of right, “within 30 days from the date of the order of the court”.  Unfortunately, the 2^nd respondent’s mistake was shared by the applicant and the 3^rd respondent, otherwise I would have expected them to have informed the 2^nd respondent that the application for leave was misconceived.  The summons was heard on 29 December 2005, leave to appeal was resisted on behalf of the applicant and the 3^rd respondent, and refused by the judge.

6.It was in the course of considering an appeal to the Court of Appeal that the lawyer of the 2^nd respondent realised that leave to appeal was not required.  On 3 January 2006, the 2^nd respondent informed the applicant and the 3^rd respondent of that fact.

7.On 10 January 2006, the application for extension of time was made.

8.On 26 January 2006, I granted an extension of time and now give my reasons for doing so.

9.I granted leave because of the rather unusual circumstances of this case and because I was satisfied that the appeal has a real prospect of success.

10.Mr Sham, counsel for the 2^nd respondent, has referred me to Unison Knitwear Ltd v Rich Easy Ltd [2001] 1 HKLRD 856, a decision of Keith J (as he then was).

11.Mr Joeson Wong, counsel for the applicant has referred me to the decision of Le Pichon JA in CACV 819 of 2000, unreported, 2 February 2001, which adopted the judgment of Keith J in Chiu Sin Chung v Yu Yan Yan Angela and Anor [1993] 1 HKLR 225 at page 227 line 37 to page 228 line 29.

12.I will not repeat the well-known principles.

13.Mr Sham argued that the judge’s approach towards the section 16A(5) assessment, relying on Liu Ah Sai V Yiu Lian Dockyards Ltd [1996] 4 HKC 244 is incorrect.  The judge was concerned with an appeal under section 18 and not an application for cancellation under section 16B.  The correct test is as stated in Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413 pages 417-418.

14.Furthermore, the judge’s reliance on the payment made by the 1^st respondent to the applicant as evidence of a direct employment by the 1^st respondent of the applicant (para. 13 of the judgment) failed to take account of the 1^st respodnent’s liability under section 24 as principal contractor.  That is notwithholding that the judge had adverted to such liability in para. 8 of his judgment.  I will not refer to other comments on his judgment made by Mr Sham.  Putting the 2^nd respondent’s case at the lowest, I believe “an informed assessment of the prospects of an appeal could only be made at a hearing equivalent to the hearing of the appeal” per Keith J, in Unison Knitwear Ltd v Rich Easy Ltd at page 858J.

15.For the above reasons, I granted an extension of time.  I also granted a stay of execution upon the 2^nd respondent’s undertaking to pay the judgment sum together with accrued interest into court.  There was no opposition to the order requested by the 2^nd respondent that costs of this application be costs in the appeal and I ordered accordingly.  I also ordered that the 3^rd respondent’s costs be taxed in accordance with Legal Aid Regulations, Cap. 91A.

Mr Joeson Wong, instructed by Messrs Huen & Partners, for the Applicant

1^st Respondent, in person, absent

Mr Walker Sham, instructed by Messrs Tang & Co., for the 2^nd Respondent

Mr Victor Gidwani, instructed by Messrs Simon Si & Co., for the 3^rd Respondent