Yu Nongxian v. Ng Ka Wing and Another

CACV 270/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2006

(ON APPEAL FROM DCEC NO. 548 OF 2004)

______________________

BETWEEN

__________________

Before : Hon Tang VP, Cheung JA and Lam J in Court

Date of Hearing : 2 November2007

Date of Decision : 2 November 2007

__________________

DECISION

__________________

Hon Tang VP :

1.This is the 2^nd respondent’s application for leave to appeal to the Court of Final Appeal.

2.It is said that there are questions of great general or public importance involved in the appeal, and for that reason, leave should be granted.  Alternatively, it is said that leave should be granted on the “or otherwise” basis.

3.Our decision concerned the exercise of discretion under section 2(2) of the Employees’ Compensation Ordinance, Cap. 282.

4.Section 2(2) provides that even if the contract of service :

“

… under which the injured person was working, at the time when the accident causing the injury happened, was illegal, the Court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at the time aforesaid been a person working under a valid contract of service …”

5.In our judgment, we rejected the 2^nd respondent’s implicit if not explicit submission that when the employer was uninsured and an impecunious, public policy required that the court should refuse to exercise its discretion in favour of the employee.

6.We concluded, however, that the important public policy reasons, as identified by Mr Wong, must be balanced against other relevant policy considerations.  In any event, whether the discretion should be exercised must depend on all the circumstances.

7.Since the judge had not exercised the discretion, we exercised our discretion.

8.In our view, no question of great general or public importance is involved in our decision.

9.As for the Bird v Keep point (Bird v Keep [1918] 2 KB 692), this point is not determinative of the appeal, and does not involve a question of great general or public importance.  Indeed, I am not sure that I would regard this point as even reasonably arguable.

10.In any event, we have a discretion in the matter, and this is not a case where I would exercise my discretion in favour of granting leave.

11.The accident occurred in 2002, and it was a fatal accident, and we are concerned with compensation in the sum of $303,000.  This is not a case where the 2^nd respondent is able to say that the compensation would be paid regardless of the outcome of the appeal.  The appeal will inevitably result in greater delay, so in all the circumstances, I would refuse leave.

Hon Cheung JA :

12.I agree

Hon Lam J :

13.I agree and I think that this is important to bear in mind all the circumstances in this case in deciding whether leave to appeal should be granted.  As Tang VP had pointed out, the 2^nd respondent is unable to offer any undertakings that they would not seek cost against the applicant and they would pay the applicant in any event, irrespective of the outcome of the appeal.

14.Bearing in mind that this is compensation for employees under the Employees’ Compensation Ordinance which meant to provide prompt payment to alleviate the hardship to victims of industrial accidents and bearing in mind the time lapse between now and the accident, I think it would be unduly harsh and unfair to the applicant if there is further delay in the matter.  I therefore agree that leave should be refused.

Hon Tang VP :

15.The 2^nd respondent’s application for leave to appeal to the Court of Final Appeal is refused with costs.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Horace Wong, SC, instructed by Messrs Gallant Y.T. Ho & Co., for the 2^nd Respondent.

Mr Patrick D Lim, instructed by Messrs Ambrose Ng & Co., assigned by Director of Legal Aid, for the Applicant.

The 1^st Respondent, in person, absent.