Limbu Prem Parkash v. Ng Yuk Man Formerly t/a Sun Fai Transportation Co and Another

DCCJ 51/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 51 OF 2008

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram:  His Hon Judge Leung in Chambers (open to public)

Date of hearing:  13 May 2008

Date of decision:  19 May 2008

DECISION

1.Limbu (the Applicant) was allegedly tripped and fell during packing work in January 2006.  He allegedly injured his knee and wrist.  This January, he filed the application for employees’ compensation, 2 weeks before the application was time-barred under section 14 of the Employees’ Compensation Ordinance expired.  Ng (the 1^st Respondent) was the alleged employer and Freight Transportation (the 2^nd Respondent) was the alleged principal contractor.

2.Limbu now applies for leave to appeal against the certificate of review of assessment by the Employees’ Compensation (Ordinary Assessment) Board dated 18 July 2007 (Form 9).  Parties informed me that the certificate of the original assessment (Form 7) was issued on 25 April 2007.

3.Section 18(2) of the Ordinance restricts the time for lodging such an appeal to 6 months from the date of the certificate.  The time for appealing against the certificate of review lapsed a week after the application for compensation was filed.  This application for leave was taken out when Limbu was 3 months out of time.

4.Under section 18(2), the court may extend the time for such an appeal, if it thinks fit.  At the hearing, I expressed my reservation about the explanation, or the lack of explanation, provided in the affidavit in support.  Mrs Morris suggested that the court has readily exercised discretion in favour of granting leave so long as the prejudice to the other side is not substantial and can be adequately compensated by way of costs.  In support, she relied on Yung King v Ka Ming Hop Yick Engineering Co & Ors, DCEC 655/2000, 10 September 2002; Lai Yuen Hing v Lo Chi Hung t/s Kam Hung Construction Co & Anor, DCEC 14/2000, 16 December 2002; and Au Kin Wah v Always Win Fashion Limited, DCEC 829/2001, 27 September 2002.  The first two cases were decided by the same Deputy Judge who held that section 18(2) does not impose any requirement for reasonable excuse before an extension of time can be granted.  I did not agree this is the correct approach but allowed parties time to submit further authorities relevant to my determination.

5.My view stems from my understanding that the approach in Yung King was not followed in Lai King Wai v Kwai Chuen Container Service Company Limited, DCEC 805/2002, 4 December 2003.  Insofar as this approach was concerned, Yung King was in fact overruled by Chung Sau Ling v Million Join Limited t/s Tsupo Seafood Restaurant, DCEC 8/2003, 16 July 2003.  When submitting her further authorities, Mrs Morris conceded this.

6.According to Chung Sau Ling (above), the court should be provided with all relevant factors including the length of delay, the reason for the delay, the prejudice to the other party if extension is granted and the merits of the appeal.  The court will not go into detailed arguments on these various factors, but they must be presented for its consideration.  The court will then decide whether the overall justice of the case requires an extension of time to appeal under section 18.

7.According to Mrs Morris’ affidavit, her firm was assigned to take over Limbu’s case from the previously assigned solicitors in May 2007.  Despite numerous requests, Limbu has failed to give instructions for some time.  She understands that Limbu felt frustrated by the fact that his former solicitors’ letters to Ng had been returned and that Freight Transportation denied its alleged principal contractor’s capacity.

8.To begin with, it was not Limbu himself, but his solicitor, who explained such feeling due to the above circumstances.  But Limbu has been assigned with solicitors by legal aid since November 2006.  Having the conduct of the matter, his solicitors ought to know that the above circumstances were not uncommon.  I have no idea what happened between him and his previous solicitors prior to the reassignment of solicitors in May 2007.

9.Mrs Morris affirmed that she was not aware of the taking place of the review of assessment or the certificate of review until Limbu provided the certificate very recently.  She did not say but presumably the solicitors managed to take instruction from Limbu at least by the time when they filed the application for compensation on his behalf this January.  In the application, they pleaded that Limbu’s incapacity was yet to be assessed.  Whether or not the solicitors actually sought Limbu’s instruction in this regard, why did Limbu still fail to inform his solicitors of such assessment and the existence of the certificate?  Why did he choose to provide the certificate afterwards?  There is no explanation.

10.There is no suggestion that language caused communication difficulty in the case of Limbu.  There is also no suggestion that he did not understand the assessment procedure.  He must have at least disagreed with Form 7 issued in April 2007, and hence the review and Form 9.

11.An appeal lodged within time needs no justification by showing merits at the time of its being lodged.  The same is not true when the appeal is out of time.  As in Chung Sau Ling, the merit of the appeal is a relevant factor that the court needs to consider.  In the present case, the parties informed me during the hearing that Form 7 certified Limbu’s loss of earning capacity was 0.5%.  This was reviewed to become 1% in Form 9.  However, I was not informed of the basis on which Limbu now disagrees with Form 9.  There is no material, not to mention medical records or expert evidence, on the merits of the intended appeal.

12.Mrs Morris further relies on Gurung Umesh and W Ho Civil Engineering & Construction Company Limited, DCEC 1040/2000, 11 April 2002, where the learned Judge granted leave for the appeal out of time.  In fact, on the same day, the learned Judge also granted leave in another case Kwok Yau Tai v Tung Wah Group of Hospitals, DCEC 44/2000.  In the first case, the learned Judge accepted that the applicant had language barrier and was ignorant about the assessment process, the significance of the certificate and the time limit for appealing the Board’s assessment, until he received legal aid.  In the second case, the learned Judge had regard to, among others, the fact that early notice of intention to appeal was given by the applicant’s solicitors to the respondent’s solicitors (one month after the certificate was issued).  There was also a favourable medical expert report in support of the appeal.  Circumstances close to these are not shown to be present here.

13.In Lai King Wai (above), there was no real explanation for the delay; nevertheless the learned Judge granted leave to appeal.  However the peculiar circumstances of that case were that that was the actual hearing of the assessment of compensation.  Further it was the respondent’s intention to appeal against the certificate out of time, when the applicant has already put the same in issue by lodging his appeal.  The learned Judge considered that it would be rather artificial for the court to examine one decision of the Board and to ignore the other.  Again, such circumstance does not exist in the present case.

14.No doubt each case has to be decided on its own circumstances.  The fact that the court will not go into detailed arguments on the factors does not mean that the court need not be satisfied that these factors are actually provided so as to enable the court to consider what the overall justice of the case requires.  In this case, I can only be satisfied that delay is relatively short and there should be no substantial prejudice to the Respondents, if leave is granted.  But if I grant leave simply on such basis, I would effectively be adopting the approach already overruled by Chung Sau Ling.  In terms of section 18(2), I do not think it is fit to grant leave.

15.The application is dismissed with costs to the Respondents in any event.  Costs shall be taxed, if not agreed.  Limbu’s own costs shall be subject to legal aid taxation.

Representation:

Mrs Z Morris of Messrs John M Pickavant & Co for the Applicant on the instruction of the Director of Legal Aid

Mr Ravenscroft of Messrs David Ravenscroft & Co for the Respondents