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 NO. 729 OF 2006)

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BETWEEN

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Before : Hon Cheung and Yeung JJA in Court

Date of Hearing : 4 September 2007

Date of Judgment : 4 September 2007

Date of Reasons for Judgment : 6 September 2007

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Reasons for Judgment

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Hon Cheung JA (giving reasons for judgment of the court):

1.The applicant was a domestic helper in the employ of the respondent.  She claimed that she was injured in the course of her employment and lodged a claim for employees’ compensation in the District Court.  Deputy Judge A. B. Bin Wahab dismissed the application on 22 January 2007 after a two-day hearing. 

2.On 23 April 2007 the applicant applied for extension of time to appeal against the judgment.  Rogers VP upon hearing the applicant refused the application.  The applicant appealed against Rogers VP’s decision.  We refused the appeal and made no order as to costs of the application.  We now give our reasons. 

3.Rogers VP refused the application on the merits of the applicant’s claim.  Deputy Judge Wahab, while accepting that the applicant had back pain or injury on the occasions she sought medical attention, did not accept her evidence as to how the accident occurred.  He further did not accept the evidence of the applicant’s witness who claimed that the applicant had told her that she had slipped and hit her back on the floor during her work.  The witness was also asked to massage the applicant’s back for her. 

4.Deputy Judge Wahab, on the other hand, accepted the evidence of the wife of the applicant’s employer who claimed that the applicant had told her that she sprained her back while helping a friend to pack. 

5.Rogers VP held that the applicant had not shown why the judge had fallen in error when he made such a finding of fact.  We agreed and on this basis we dismissed the appeal. 

6.The applicant also asked for an adjournment to enable her to seek legal advice.  In our view the applicant had ample opportunity to seek legal advice if she had minded to do so.  In any event, on the matters as they stand, we could not see how her case could be improved by consulting a legal adviser.  We therefore refused the application to adjourn.

The Applicant, in person, present

The Respondent, in person, present