Fernandez, Melecia T. v. Kwan, Joseph Chi Hung

HCMP 757/2007

in the high court of the

hong kong special administrative region

court of APPEAL

miscellaneous proceedings no. 757 of 2007

(ON AN INTENDED APPEAL FROM DCEC 729/2006)

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BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 28 May 2007

Date of Decision: 28 May 2007

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D E C I S I O N

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1.This is an application by Miss Fernandez for leave to appeal out of time.  If I saw merit in this case I would, of course, give leave to appeal.  Miss Fernandez is acting in person and one cannot always expect litigants in person to be meticulous in the way they conduct legal proceedings.

2.The difficulty, however, in the case is that although I accept that Miss Fernandez is suffering back pain, and she has medical reports to show that, they are not specific as to precisely what it is causing it.  The pain does seem to come from the L4, L5 disc region.  The deputy judge below held as a fact that she had not suffered an accident in the way that she claimed and that whatever injury she has did not stem from any accident that was alleged to have happened on about 2 August 2003.  The medical reports are very sketchy and scattered over quite a lengthy period.  They do not show an immediate recourse to medicine.

3.The Respondent’s wife gave evidence, which was accepted by the judge, that the applicant had said that she had suffered her injury when she was helping her friend to pack.  Now, the finding that there was no accident, which was witnessed by the employer’s wife and child on or about 2 August 2003 and the acceptance of their evidence seems to me to make it very difficult for this court to hold contrary.  In fact, I cannot see how that can be done on this appeal, given what is before the court.  It is not a question of whether the applicant is acting in person or with solicitors, the result would be the same.

4.In those circumstances, whilst I appreciate that Miss Fernandez is no doubt suffering considerable back pain and back pain from trouble in the L4, L5 region is something that I personally know something about from my own experience, I am afraid that I cannot see that it will be right to give Miss Fernandez leave to appeal in this situation because I simply do not see how the Court of Appeal could overrule the findings of fact by the deputy judge.

5.In those circumstances, I regret that I consider I have no alternative but to refuse the extension of time.

The Applicant, in person

The Respondent, in person (absent)