Chiu Kwok Hung Ban v. Ng Fu Wing t/a Wing Kee Aquarium Eng Co and Others

CACV 83/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 83 OF 2010

(ON APPEAL FROM DCEC NOS. 887 OF 2002 AND
317 OF 2004 (CONSOLIDATED))

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(Consolidated pursuant to the Order dated 5^th December 2005)

Before: Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing: 7 February 2011

Date of Judgment: 7 February 2011

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal on the grounds that the five questions raised are matters of great general and public importance.  In the first place, in my view, in so far as these questions are coherent or intelligible, they are matters specific to this case and not of great general and public importance.

2.The first three questions amount to this, namely, whether this Court’s approach in paragraph 16 of this Court’s judgment of 3 November was a course which was open to this Court.  Put briefly, it is said - and it has to be said, in my view, for the fourth respondent in this case to get any argument off the ground - that this Court should have ignored the evidence of the applicant and should have relied on some so-called data, whether it be in writing or otherwise, which ignored what actually was the particular position with regard to the applicant.

3.In my view, that argument is unsustainable because the best approach, in my view, is to see what the applicant himself did and to judge that against what might be considered reasonable.  What this Court did was to consider the applicant’s own evidence that he worked 20 working days per month, which was a lower figure than on his Form 2, and this Court considered that it was reasonable in the circumstances, given that that would be five days per week per a four-week month.

4.As regards the fourth question, I find that very difficult to comprehend because it contains a double negative.  In the skeleton argument, Mr Kwong has tried to condense it so that the question amounts to whether, under section 11(2) of the Employees Compensation Ordinance, it is not open to the court not to accept the oral evidence from the applicant regarding his actual income unless there are good reasons why the same should not be accepted.

5.The difficulty with double negatives is that they cause confusion in themselves, but the question can amount to no more than this, that whether is it open to this Court, in the circumstances that it considers correct, to accept the applicant’s evidence.  Put in that way, I can hardly see that that raises any matter of great general and public importance.

6.The fifth question amounts, simply, to the argument that there should be documentary evidence as to what the average earnings are of a worker in the position that the applicant was.  If such evidence exists and it is available, of course, it is useful.  But to argue that there must be documentary evidence, or that there must be evidence in hard form and thus that this Court and the Tribunal cannot accept oral evidence, appears to me to be doomed to failure.

7.I see absolutely no merit in this application for leave to appeal.

Hon Le Pichon JA:

8.I agree.

Hon Stone J:

9.I agree with the judgment of the Vice-President.  Mr Kwong’s bold submission appeared to be based on a premise that specific evidence in any particular case should be overlooked or displaced in favour of some objectively established empirical “norm”.  With respect, this approach is not only ambitious but, in my view, is also wholly misplaced.

Mr Herbert Leung, instructed by Messrs ONC Lawyers, for the Applicant/Respondent 

Messrs Massie & Clement, for the 1st Respondent/Respondent (attendance excused)

The 2nd Respondent/Respondent, in person (absent)

The 3rd Respondent/Respondent, in person (absent)

Mr Alan Kwong, instructed by Messrs Hui & Lam, for the 4th Respondent/Applicant