Liu Le Wen v. Chan Sing and Another

cacv 185/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 185 of 2007

(on appeal from DCEC NO. 1483 of 2005)

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before : Hon Rogers VP and Le Pichon JA in Court

Date of Hearing : 17 January 2008

Date of Judgment : 17 January 2008

Date of Handing Down Reasons for Judgment : 23 January 2008

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal from a decision of HH Judge Chow given on 21 May 2007.  The matter before the judge was an application for leave to commence compensation proceedings under the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”).  The judge refused that application.  At the conclusion of the hearing of this appeal this court allowed the appeal, with reasons to be given in writing, and made an order that the costs below be costs in the cause with certificate for counsel and that the costs in this court be to the applicant.  There was an order for legal aid taxation.  We now give our reasons.

Background

2.The applicant was born in 1963 and resides in the Mainland.  He came to Hong Kong on a two-way permit and took up employment with the first respondent, Chan Sing, on the introduction of another person Chan Yuen Ping.  The applicant was injured on 13 December 2002 when he fell from a height of about 3 metres.  He was engaged in erecting scaffolding on the external wall of a building in order to dismantle an illegal structure.  The applicant sustained very serious injuries to his head and importantly to his right hip and foot.  From the medical reports which we have been shown it is clear that he is severely handicapped and needs crutches or sticks to be able to move around.  It would appear that the extent of his injuries is such that his condition is likely to deteriorate.

3.Following his accident the applicant was hospitalised in Hong Kong but very soon advised to return to Foshan in the Mainland for further treatment.  It is clear that over the years he has been in hospital in the Mainland for very considerable periods.

4.His employer, the first respondent, disappeared immediately after the accident.  Importantly, he did not give notice to the Commissioner as was required under section 15(1A) of the Ordinance.  The applicant did come to Hong Kong on two-way permits on about five occasions in order to try to locate the first respondent so that he could at least be reimbursed the costs of his medical treatment.  From the evidence which has been filed it would appear that those journeys were extremely arduous in view of his infirmities and restricted mobility.  The applicant only remained in Hong Kong for short periods and could locate neither the first respondent nor Chan Yuen Ping.

5.The judge below took the view that because the applicant had come to Hong Kong under a two-way permit and was thus not permitted to take up employment the discretion to extend time under section 14(4) of the Ordinance should not be exercised because the discretion under section 2(2) of the Ordinance to make a claim notwithstanding that the employment was illegal should not be exercised.

6.On this appeal Mr Bharwaney, who appeared on behalf of the applicant, has drawn attention first of all to the decisions of this court in Yu Nonxiang v Ng Ka Wing [2007] 4 HKLRD 159 and Chen Xiu Mei v Li Siu Wo CACV 26 of 2007.  On this appeal Ms Mok SC, who appeared on behalf of the second respondent, merely wished to reserve the point should this matter go further but there was no argument that the decisions in those cases should not be followed.  In those circumstances the basis upon which the judge below reached his decision would be vitiated.  Hence this court is in the position where the discretion should be exercised afresh.

The exercise of discretion

7.In my view the time for commencement of proceedings under the Ordinance should be extended.  Section 14(4) provides:

“

The Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.”

8.The question therefore is whether there is a reasonable excuse for the applicant not to have commenced the application prior to 13 December 2004.  This court’s attention has been drawn to a number of cases in which the question of what constitutes a reasonable excuse under the terms of that section has been considered.  I would say at once that none of the instances in the case is any more than an illustration of what the court on that occasion considered was a reasonable excuse.  Neither do I consider that any benefit is to be gained from paraphrasing the expression or trying to explain it any further.  The words are plain.

9.In my view the applicant has demonstrated that he has a reasonable excuse for not commencing the proceedings earlier than they were.  Not only was he severely incapacitated but for the greater part of the period he was in hospital in the Mainland.  When he did come to Hong Kong it was for the purpose of seeking out the first respondent.  That was an exercise which in the event was wholly unsuccessful but was clearly the first step which he should have taken.  During that time the applicant was apprehensive of his position because he had taken employment illegally.  The first respondent was at fault in not reporting the accident to the Commissioner.  Had he done so the applicant’s rights would have been preserved.  It was only in mid 2005 that the applicant became aware that the legal aid department might take the matter up on his behalf.  It then took another six months or so for this application to be put on foot.

10.Although the section requires proof of a reasonable excuse, that must be in the context the facts of the case.  It is therefore not irrelevant to have regard to any prejudice that might be occasioned to the respondent to the application.  The reason for that is that the time limit provided in the Ordinance is clearly a matter for the protection of the employer in so far as there is scope for protection given the fact that the scheme of the Ordinance is for a non-fault based system of compensation.  In this case the first respondent is not to be found and Ms Mok, on behalf of the second respondent, stated right at the commencement that she could not suggest that there was any prejudice by reason of the delay to the second respondent.

11.Given those circumstances I consider that the respondent does have a reasonable excuse for not having taken proceedings earlier and the circumstances are such that this court’s discretion should be exercised in the applicant’s favour.

Hon Le Pichon JA:

12.I agree.

Mr Mohan Bharwaney, instructed by Messrs Vincent T.K. Cheung, Yap & Co., for the Applicant/Appellant

Ms Alice Mok SC, instructed by Messrs Gallant Y.T. Ho & Co., for the 2^nd Respondent/Respondent