Wong Wing Fong v. Café De Coral Central Processing Ltd

FAMV No. 19 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 20 OF 2010)

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Between

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D E T E R M I N A T I O N

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Mr Justice Chan, Acting CJ (for the Appeal Committee) :

1.The applicant was an employee of the respondent Café De Coral. She claimed that she sustained multiple injuries when her superior, Ms Cheung Ping Fong accidentally pushed a water tank onto her while she was at work causing her to be trapped between two water tanks. She said that at that time, she felt pain in her waist, abdomen, thighs and left hand. She did not report this accident to her employer until the following day partly because she did not want to cause trouble but mainly because she thought it was not very serious and that she would be alright by applying ointment and taking a rest. This however did not work and she had to go to hospital the following day to receive medical treatment. She sued the respondent for compensation under the Employees’ Compensation Ordinance (Cap. 282). 

2.At trial, Ms Cheung denied in her evidence that the accident ever occurred. There was also some suggestion that the applicant had an existing medical condition. The Judge preferred Ms Cheung’s evidence over that of the applicant. He also found that the applicant had overstated her injuries. Her claim was rejected by the Judge and his decision was affirmed by the Court of Appeal.  

3.This is a claim for employee’s compensation to be assessed according to the provisions of the Ordinance. For such a claim, there can be no appeal as of right to the Court of Final Appeal. Nor does this case involve any questions of great general or public importance. Moreover, the Court will only exercise its discretion to grant leave if there are reasonably arguable grounds of appeal.

4.In applying for leave, the applicant’s main ground of appeal is that the Judge’s findings of fact which were upheld by the Court of Appeal are wrong. But her difficulty is that the Court will not interfere with concurrent findings of fact save in exceptional circumstances (see: Sky Heart Ltd v Lee Hysan Estate Co Ltd (1997-1998) 1 HKCFAR 318). It is not the function of the Court to engage in a fresh hearing on the evidence.

5.The applicant submits that the Judge had erred by believing the evidence of Ms Cheung. In her written and oral submissions, she repeats her allegations of what happened to her while she was at work; she highlights passages in Ms Cheung’s evidence at the trial to support her allegation that Ms Cheung had admitted that there was an accident and that Ms Cheung was telling lies in court; and she also points to various parts of the respondent’s case which she says are not true.

6.We have carefully considered all her written materials and oral submissions. We are unable to find that any of Ms Cheung’s answers amounts to an admission that the accident had occurred as alleged by the applicant. Ms Cheung had maintained throughout her evidence that the alleged accident did not occur. It was open for the Judge to find Ms Cheung to be a credible and reliable witness.

7.The applicant seeks to rely on the Form 2 filed by the respondent to the Labour Department on 22 May 2006. We have considered this document carefully. It describes nothing more than the fact that the respondent was informed by the applicant of the accident and her injuries. This cannot amount to any admission of liability on the part of the respondent.

8.The applicant also says that there was a colleague Ah Chun who saw the accident. But as the Court of Appeal noted, neither Ah Chun nor indeed any other witness was called to confirm her case. There was no explanation as to why that witness was not called at the trial.

9.Finally, she speaks of serious injuries to (among others parts) her pelvis, cerebral column and her left hand and that her injuries were proven by medical reports based on results of X-ray and MRI scans. However this was not supported by the joint medical report dated 10 May 2009 by Dr Fu and Dr Chiang who merely noted that some of the injuries complained of by the applicant “could not be excluded” or “could not be ruled out” as being caused in the alleged incident and that the physical examination by X ray and MRI of her pelvis did not reveal any abnormality. We are satisfied that the Judge was entitled on the evidence to find that the applicant’s injuries were not as serious as she said.

10.Having reviewed the findings of the Judge, the reasons of the Court of Appeal in affirming these findings and having considered the applicant’s submissions, we do not see any compelling reason to disturb the concurrent findings of the courts below. Accordingly, we are satisfied that the applicant has no reasonably arguable case. We dismiss her application. Counsel for the respondent had indicated at the end of the hearing that the respondent would not pursue costs against the applicant even if she were to fail in her application. So we make no order as to costs.

Applicant in person

Ms Julia Lau (instructed by Messrs King & Wood) for the respondent