Chan Chun Ming v. Chan Tung Leung and Another

HCMP 1012/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1012 OF 2011

(ON AN INTENDED APPEAL FROM DCEC NO. 1462 OF 2009)

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BETWEEN

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Before: Hon Kwan JA in Chambers

Date of Hearing: 12 August 2011

Date of Decision: 12 August 2011

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DECISION

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1.This is a summons purportedly taken out by the respondents in proceedings for employees' compensation. They are named as Chan Tung Leung and Chan Muk Tak trading as View Run Company. I understand Chan Muk Tak had passed away in June 2010, so the summons was only taken out by the first-named respondent Chan Tung Leung. Judgment was given in favour of the applicant Chan Chun Ming by Deputy District Judge Wilson Chan on 31 March 2011 against the respondents. The respondents were ordered to pay compensation to the applicant in the sum of $199,694.30 with interest.

2.Under section 23(1) of the Employees' Compensation Ordinance, Cap. 282, it is provided that an appeal shall lie to the Court of Appeal from any order of the District Court in an application for employees' compensation.  Section 23(4) provides that no appeal shall lie after expiration of 30 days from the date of the order of the court, provided that the Court of Appeal may, if it thinks fit, extend time within which to appeal notwithstanding that time has elapsed.

3.Any Notice of Appeal of the respondents from the order of the Deputy District Judge awarding compensation should have been filed by 29 April 2011.

4.A Notice of Appeal was not filed within time.  On 31 May 2011, the first-named respondent filed the present summons seeking leave to file the Notice of Appeal out of time as per the draft annexed to the summons and for stay of execution of the order of the Deputy District Judge pending determination of the appeal.

5.The summons first came before me on 28 June 2011 and was adjourned for the first-named respondent to provide draft amended grounds of appeal to the applicant.  On 4 July 2011, he filed a document entitled “Perfected Grounds of Appeal” in these proceedings.

6.In support of his application, the first-named respondent filed two affirmations on 1 and 27 June 2011.

7.The Court of Appeal has a discretion whether to grant an extension of time in the circumstances, and the principles are well established.  I refer to Hong Kong Civil Procedure 2011, Vol. 1, para. 59/4/10 and the cases there cited, notably Chiu Sin Chung v. Yu Yan Yan Angela [1993] 1 HKLR 225 and Secretary for Justice v. Hong Kong & Yaumatei Ferry Co. Ltd. [2001] 1 HKC 125.  For a decision for extension of time in the context of an appeal against assessment in employees' compensation under section 18 of Cap. 282, I refer to Chung Sau Ling v. Million Join Ltd. [2003] 4 HKC 561 at para. 16.

8.The delay here was 31 days.  It was not a substantial delay, although I would not say it was short.

9.According to the affirmation of the first-named respondent, after judgment was given on 31 March, he had conferences with his solicitor and counsel by telephone or in a meeting on 1 and 21 April to “discuss the procedures and merits of appeal”.  On 4 April, his solicitor applied for a hearing transcript for the purpose of exploring the merits of appeal.  In the late afternoon of 26 April, the first-named respondent received the full transcript of 61 pages.  Two conferences were held on 26 and 28 April with his solicitor, where details of the transcript were explained to him and “the likelihood of an appeal was also discussed”.

10.The first-named respondent said in his affirmation the consequences of bringing an appeal could be “profound” to his family, so he needed “additional time” to discuss with his family to seek their support and to seek “as much professional advices as possible on all the possible matters before making [his] final decision on appeal”.

11.On 3 May he had a further conference with his counsel and solicitor and on 4 May he finally made a decision to appeal and gave instructions to his solicitor.  He asserted that the delay in submitting the Notice of Appeal was not “intentional”.

12.The first-named respondent did not say in his affirmations he was unaware of the time limit for the filing of a Notice of Appeal, and that this must be done by 29 April.  He had the benefit of legal advice throughout and on 21 April, during a conference with his counsel, there was discussion of “the procedures and merits of appeal”.  If the delay was merely a few days after 29 April to think things over after receipt of the transcript on 26 April and to discuss matters with his family, this could perhaps be regarded as excusable.  There was however a further delay between 4 May and 31 May when the summons for extension of time was eventually taken out.  This further delay was not explained by him.

13.I do not consider delay was entirely excusable in the circumstances.

14.This being the position, the first-named respondent must show real prospects of success on the merits for the court to exercise its discretion to grant an extension of time, see Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd at 129.

15.The dispute in the District Court was whether the applicant was an employee of the respondents at the time of the accident on 7 April 2008.  The judge heard the evidence of the applicant and the two witnesses of the respondents, being the first-named respondent and a Mr Hui in a 3-day trial.

16.According to the applicant’s evidence, he went to the site to work on the morning in question having agreed with the first-named respondent in advance that the latter was to pay him $530 for a day’s work.  The applicant was a painting worker on a casual basis.

17.The respondents’ case was that the first-named respondent had already engaged Mr Hui to carry out the work as a sub-contractor, and as the first-named respondent did not have the heart to tell the applicant the job was already given to Mr Hui when the applicant turned up at the site together with Mr Hui, he asked the applicant to give him a quotation for sub-contracting the job.  The applicant was carrying out an inspection in the site for the purpose of giving the quotation when he met with an accident.

18.The judge found the applicant's version of the events much more probable to be true.  He rejected the evidence of the first-named respondent and Mr Hui as incredible, inconsistent and unreliable, for reasons given in paras. 32 to 40 of his judgment.  He rejected the submission of the respondents' counsel that there was insufficient evidence to find a relationship of employer and employee, and had regard to the observations of Ribeiro PJ in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 para. 61 about an employee on a casual basis.

19.In the draft Notice of Appeal, leave was sought by respondents to adduce new evidence on appeal.  No information was provided by the first-named respondent what that new evidence might be and how he could satisfy the requirements in Ladd v. Marshall [1954] 1 WLR 1489 for the admission of new evidence on appeal.

20.I have considered the grounds of appeal in the “Perfected Grounds.”  Mr Kevin Hon, counsel for the respondents, has taken me this morning to the relevant parts of the transcript.  I have also read extensively the transcript of proceedings.  The main thrust of the argument advanced in the grounds were directed to overturn the findings of fact by the judge, contending that he had erred in finding a contractual relationship between the respondents and the applicant and that the applicant was an employee of the respondents, that he had failed to evaluate the evidence properly in making those findings, that he had erred in rejecting the evidence of the respondents' witnesses and in accepting the applicant's evidence, and that he had not given weight or sufficient weight to various matters. 

21.I am of the view the respondents would have considerable difficulty in seeking to overturn findings of fact made by the trial judge based on the judge’s assessment of the credibility of the witnesses.  The respondents have not shown on what basis the Court of Appeal should overturn these findings of fact.  That another court might have taken a different view of certain aspects of the evidence, said to be not in dispute, is beside the point.  Besides, I am not persuaded of the significance of those undisputed matters mentioned in the perfected grounds.  What weight should be attached to a piece of evidence is a matter for the trial judge.  In the absence of error of the judge in his analysis of the evidence, there is no room for intervention on appeal.  It does not appear to me the respondents have demonstrated real prospects of success on appeal.

22.I will exercise my discretion to refuse an extension of time to file the Notice of Appeal.

23.The stay of execution pending appeal does not arise given the refusal of leave to file the Notice of Appeal.  The application for stay of execution is also dismissed.

24.I award costs of this application to the applicant on a party and party basis.  I order the applicant's own costs in the application to be taxed in accordance with the Legal Aid Regulations.

Mr. Fan Shun Yan Edward instructed by Messrs Lau & Chan, assigned by the Director of Legal Aid, for the Applicant/Intended Respondent

Mr. Kevin Hon instructed by Messrs Gloria Chan & Co., for the Respondent/Intended Applicant