DCEC1530/2006
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES' COMPENSATION CASE NO. 1530 OF 2006
________________________
BETWEEN
| | HUI CHING MOON (許清滿) | Applicant |
| | and | |
| | DOUBLE SECURITY LIMITED | Respondent |
________________________
Coram: Deputy District Court Judge Frederick HF Chan (in Chambers open to public)
Date of hearing: 17th October 2008
Date of handing down reasons for decision: 21st October 2008
REASONS FOR DECISION
1. This is an application by the Respondent to (a) determine a preliminary question on time bar and (b) strike out the Applicant’s claim for employees’ compensation for “want of prosecution”. This case has a rather convoluted history and for ease of understanding, I should attempt to provide a summary of the essential incidents.
The Accident
2. On 7th May 2005, the Applicant (Mr. Hui Ching Moon) was on patrol as a security guard for the Respondent (Double Security Limited) at Butterfly Shopping Centre, Tuen Mun, New Territories (“the Date of Accident”). He had a fall on a staircase and suffered a fracture of right 5th metatarsal base and injured his right wrist. At the Date of Accident, he was aged 59 and is now 62.
3. By a certificate of assessment dated 5th September 2005 (i.e. Form 7), the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the Applicant’s injuries to be “fracture of right 5th metatarsal base resulting in residual right foot pain” and the permanent loss of earning capacity was assessed to be 0.5% (“the Board’s Certificate”).
4. By virtue of a certificate of compensation assessment (i.e. Form 5) dated 12th September 2005, the Commissioner of Labour (“the Commissioner”) followed suit and certified that the permanent loss of earning capacity suffered by the Applicant as a result of the Accident was 0.5% and a total amount of HK$10,072 should be paid to the Applicant as employees’ compensation (“the Commissioner’s Certificate”). The Respondent paid the sum of HK$10,072 to the Applicant.
5. Both the Board’s Certificate and the Commissioner’s Certificate were issued pursuant to the provisions of Employees’ Compensation Ordinance (Cap. 282) (“the Ordinance”).
6. On 12th December 2005, the Board issued a certificate of review of assessment (i.e. Form 9) whereby the Board’s Certificate was cancelled (“the Board’s Review Certificate”). Under the Board’s Review Certificate, the Board opined that the Applicant’s permanent loss of earning capacity should be increased to 1.75% and that the injuries of the Applicant included:
“fractures of right 5th metatarsal base and right wrist injury resulting in (i) residual right ankle/fore foot pain; and (ii) right wrist and right ankle stiffness”.
7. Later, the Commissioner’s Certificate was cancelled by a certificate of review of compensation assessment (i.e. Form 6) dated 19th December 2005 and pursuant to section 16A(5) of the Ordinance, the Commissioner certified in writing that the Applicant was entitled to receive HK$14,372 as employees’ compensation (“the Commissioner’s Review Certificate”). The Applicant’s permanent loss of earning capacity was adjusted to 1.75%. The Commissioner's Review Certificate contained the written warning that:
“… an appeal against this assessment may be made to the District Court within 6 months from the date of issue of this Certificate”.
8. Again, the Respondent made payments to the Applicant with a view to complying with the Commissioner’s Review Certificate. In the Court of Appeal’s case of Ng Ming Cheong v. Mass Transit Railway Corp. [1997] 3 HKC 413 (“Ng Ming Cheong’s Case”), the applicant applied for employees’ compensation but failed to lodge an appeal against the certificate of the Board. Nevertheless, the District Court judge allowed him to adduce medical evidence to challenge the quantification made under the Board’s certificate. Such an approach was disapproved by the Court of Appeal. Mrs. Justice Le Pichon (as she then was) observed:
“In the present case, the appellant filed an application for compensation under s 18A. Had the proceedings before the judge included an appeal and/or an application to appeal out of time under s. 18, no criticism could possibly be levied at his approach in determining the amount of compensation payable. There was none (at p. 418) …
Having regard to the Ordinance as a whole and the purpose for which it was designed, namely to enable employees to obtain compensation for injuries sustained at work reasonably speedily, the importance of finality of assessments which would settle the amount of compensation payable is obvious. Nor would such a consequence take away a party’s recourse to the courts … That recourse lies in an appeal under s. 18 which the respondent has eschewed (p. 419)”.
9. Here, it cannot be gainsaid that the injury of the Applicant as described in the Board’s Review Certificate does not fall within the First Schedule to the Ordinance. As a matter of law, certain consequences would follow:
(a) In Chau Muk Chi v. Chinagold Transportation Limited, DCEC506/2002, unreported, 1st April 2003, His Honor Judge Muttrie cogently observed at p. 9:
“21. Where, as here, the injury concerned is not one specified in the First Schedule to the Ordinance, it is the court which has to decide on the appropriate percentage of permanent loss of earning capacity. This can be done under section 9(1)(b). If appropriate it can be done under section 9(1)(A) with application of the formula in Hong Kong Paper Mills Ltd. v. Chan Hi-wu [1981] HKLR 556, as modified in Lui Kwong Yan v. Shui Hing Decoration Works & Another [1993] 1 HKLR 168”;
(b) In the Court of Appeal decision of Tsang Wong Tong v. Tennille Decoration & Design Limited, CACV42/2006, Court of Appeal (Cheung, Tang JJA. and Kwan J), 10th October 2006, Madam Justice Kwan (Cheung and Tang JJA concurring) reiterated the correct approach thus:
“39. The correct test to apply for an appeal brought pursuant to section 18 against an assessment of the Board made under section 16D or 16G, is that stated in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 at118D to E, per Hunter JA:
“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.
…
41. The injury of the applicant found by the Board is not an injury specified in the First Schedule to Cap. 282, for which a percentage is given for loss of earning capacity due to permanent partial incapacity resulting from the injury. Section 9(1)(A) provides that where permanent partial incapacity results from an injury, whether or not an injury specified in the First Schedule, and the percentage of the loss of earning capacity assessed in relation to that injury in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury in the special circumstances of the employee, including, (i) the nature of the injury in relation to the nature of his former usual employment; and (ii) his qualifications, previous training and experience, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time …
47. Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and “can only judge an assessment by testing the validity of its conclusions against the total available evidence” (Chan Kam v. Standard Chartered Bank Trustee Ltd., supra, at 458)…”.
10. Pausing here, I would interpolate the above chronology with:
(a) the provisions of section 18 of the Ordinance:
“(2) No appeal shall lie after the expiration of 6 months from the date of the decision or, in the case of an assessment of the date of the issue of the relevant certificate … under section 16GA …
Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding the time has elapsed”;
(b) in the computation of time and vis-à-vis the Commissioner’s Review Certificate, on 18th June 2006, the 6-month period of time for the Applicant to lodge an appeal against the Commissioner’s Review Certificate came into expiration.
11. According to the Commissioner of Labour, the case of the Applicant was referred to the Director of Legal Aid for consideration on 30th May 2006 and subsequently on 25th September 2006, the Applicant succeeded in obtaining legal aid. In all, about 4 months were spent on the Applicant’s application for legal aid.
12. By a certificate of legal aid dated 25th September 2006, the Director of Legal Aid appointed Messrs. Tang, Wong & Chow to act for the Applicant. It was clear that by then, any appeal against the Commissioner’s Review Certificate and the Board’s Review Certificate would be out of time by about 3 months[1].
13. On 3rd November 2006 (“the Date of Application”), Messrs. Tang, Wong & Chow issued the present proceedings on the Applicant’s behalf to claim for the statutory compensations under the Ordinance against the Respondent. Further, he sought leave of the District Court to:
“2. … appeal out of time against the Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment Board on 12th December 2005 …
Leave be granted to the Applicant to apply out of time for cancellation of the Certificate of Review of Compensation Assessment dated 15th December 2005”.
14. By the Answer dated 16th November 2006, the Respondent alleged that:
- They had already paid the compensation to the Applicant in full;
- In view of the Commissioner’s Review Certificate, the Applicant did not have any entitlement to employees’ compensation under the Ordinance;
- The District Court should not grant an extension of time to allow the Applicant to embark upon the appeal against the Commissioner’s Review Certificate;
- It was pleaded by the Respondent in the Answer that:
“4. … the Respondent avers that having regard to section 18(2) of the … Ordinance … the Court shall not grant leave for the Applicant to appeal against the Certificate of Review of Assessment dated 12 December 2005 and the Certificate of Review of Compensation dated 15th December 2005.
Particulars
(1) The Applicant has no reasonable excuse or explanation for the delay.
(2) If the action is allowed to continue the Respondent will suffer prejudice: -
(a) In having to defend a claim which would otherwise have been compromised;
(b) In relation to interest and costs”.
15. On 11th January 2007 and upon the joint application of the Applicant’s previous and Respondent’s present solicitors by a consent summons, H. H. Judge M. Ng made a consent order (“the Consent Order”) that:
(a) The present EEC proceedings be adjourned sine dine with liberty to restore to determine the issue of limitation period as a preliminary issue (“the Preliminary Issue”);
(b) The Applicant shall file, serve and exchange witness statements to deal with the factual circumstances pertaining to the Preliminary Issue within 56 days;
(c) Within 6 months, the parties shall file, serve and exchange any medical evidence relating to the Preliminary Issue.
16. The Applicant had failed to comply with the Court’s directions and allowed the respective deadlines for the filing of factual and medical evidence to lapse albeit that he, on 17th May 2007, attended Dr. Lam Kwong Chin (the Respondent’s Orthopedic and Traumatology specialist) for medical examinations (“Dr. Lam”).
17. On 31st May 2007, Dr. Lam prepared his medical report where he opined that the assessment of the Applicant’s injuries and permanent loss of the earning capacity contained in the Review Certificate was “a fair one”. He also expressed the view that “orthopedically, the combined impairment is 2%”.
18. But as said by H. H. Judge Muttrie in the Chau Muk Chi’s Case at pp. 9-10:
“22. In Tang Shau Tsan v. Wealthy Construction Company Limited, unreported CACV58/2000, Rogers JA, as he then was, expressed the following view on expert witness and in particular on their opinion as to earning capacity:
An expert can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.
23. This in my view applies in employees’ compensation cases no less that in personal injury cases”.
19. I wholly agree with H. H. Judge Muttrie’s analysis and as such Dr. Lam’s quantifications of (a) the 1.75% of the permanent loss of capacity as per the Commissioner’s Review Certificate and (b) the 2% impairment of the whole person will be inadmissible evidence at the trial proper of the present EEC proceedings. A fortiori, at the hearing before me.
20. It follows, therefore, that if the Court were to grant an extension of time for the Appeal to the Applicant, the assessment of the quantum of employees’ compensation under section 9 of the Ordinance will only be determined by the Court after considering the totality of the circumstances of the present case in the context of a re-hearing.
21. Insofar as the Respondent is contending that the only entitlement of the Applicant to compensation under section 9 of the Ordinance could only be sourced from the Commissioner’s Review Certificate, that contention is fallacious. Running the risk of repetition, I would hold that the true legal position is that if the Court grants the extension of time to the Applicant to pursue the Appeal, the Court must then assess the employees’ compensation payable to the Applicant afresh.
The core question
22. That draws me to the core issue of the present case[2]:
“Whether, on the basis of the materials placed before the Court, the Court should exercise its unfettered discretion under section 18 of the Ordinance to grant an extension of time to the Applicant to embark upon the Appeal?”
23. Returning to the narrative, on 21st August 2007, the Director of Legal Aid withdrew legal aid funding from the Applicant and since then, the Applicant has been acting in person.
24. By an inter parte summons on 19th February 2008, the Respondent applied for an order to have the Applicant’s case:
“… be dismissed for want of prosecution …” (“the Dismissal Application”).
Extension of time
25. That, more or less, completed the chronicle and I would proceed to deal with the core issue of the extension of time. At the hearing before me, Mr. Tam ably argued that the phrase “appeal out of time” which appeared in the Application did not satisfy the requirement of section 18 of the Ordinance which used the phrase of “… extend the time within which to appeal under this section”.
A pleading point
26. Mr. Tam (for the Respondent) argued that, in effect, means the Applicant has not properly invoked section 18 of the Ordinance for extension of the time to pursue the Appeal. He relied on Lau Sek Yu David v. Citybus Limited, DCEC1031/2002, unreported, 21st October 2004. There, the applicant instituted an appeal out of time under section 18 of the Ordinance. The case was contested at trial. Mr. Tam cited verbatim from the judgment of H. H. Judge Chow as follows at pp.2-3:
“Appeal out of time
3. The Application to “appeal out of time” was not an application to extend the time within which to appeal against the assessments contained in the said Certificates …
What is the meaning of “extend the time within which to appeal” under section 18(2). In my judgment, there are 2 steps here. Firstly, there is an extension of the time to appeal. Secondly, when there is such an extension of the time to appeal, for example, a period of 14 days, the appeal is to be made within this period of 14 days. That is the meaning of the phrase “within which”, the word “which” means the period of extension. The first step precedes the second. Alternatively, the second step stems from the first step. It is only when the first step succeeds, then the second step will arise. If there is no extension of time to appeal, no appeal can be lodged. These two steps do not co-exist. Therefore, if an extension of time is granted, then it is from that time onwards that the applicant is entitled to take the step of lodging an appeal within the period of extension against the assessments contained in the Certificates. Because the Applicant did not apply for an extension of time to appeal, the necessity to grant such an extension of time does not arise. Put is simply, by instituting the claims under Paragraph 2(b) of the Application, the Applicant is asking the Court to try the ultimate issue in this case at the same time as the application to appeal out of time is heard. Because of this, the Court was not asked to grant an extension of time to appeal. The Applicant only asked for an appeal out of time, but this is not a matter which this Court has the power to grant under section 18(2). On this ground alone, the application under paragraph 2(a) of the Application must fail”.
27. With the greatest respect and deference to the experienced H. H. Judge Chow, I disagree and would not follow it in the present case. My reasons are:
(a) The Application is not a pleading and the Employees’ Compensation (Rules of the Court) Rules (Cap. 282, Sub. Leg.) (“the Rules”) merely provided in Rule 16 that:
“(1) An employee … who desires the determination of any question arising out of an accident in which compensation is … claimed shall lodge with the registrar of the court a written application in Form 1, 2 or 3 in the Schedule accompanied by particulars containing –
(a) A concise statement of the circumstances in which the application is made and the relief or other order which the applicant claims …”;
(b) The Rules do not say that sections from the Ordinance must be quoted or copied onto the Application (see: Form 3 – General Application, the Rules);
(c) It must be firmly borne in mind that the purpose of the Ordinance was said in the preamble to be:
“To provide for the payment of compensation to employees who are injured in the course of their employment”;
(d) Section 19 of the Interpretation and General Clauses Ordinance (Cap. 1) stipulated that:
“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”;
(e) As illustrated by the Ng Ming Cheong’s Case which was cited by Mr. Tam, the Court when interpreting the provisions of the Ordinance shall adopt a purposive as opposed to a literal approach (see: p. 419H) and the Court must have:
“… regard to the Ordinance as a whole and the purpose for which it was designed”;
(f) H. H. Judge Chow’s approach might be viewed as mechanical, literal and too much focus was placed on the wordings of section 18 of the Ordinance;
(g) As can be seen below, in the HKSAR, the modern judicial approach on section 18 of the Ordinance is a holistic one and in exercising the undoubted discretion therein to take into account the fact that the Application used the phrase “appeal out of time” together with all other circumstances of the case;
(h) Indeed, in the Ng Ming Cheong’s case, the Court of Appeal incorporated this particular short-hand of “an application to appeal out of time under s. 18” (per Mrs. Justice Le Pichon at p. 418F)[3];
(i) The Respondent was not misled by that short-hand expression of “appeal out of time”;
(j) On the contrary, as evident from the Answer, the Respondent made express references to section 18 of the Ordinance and rehearsed the alleged grounds whereby the Court should not exercise its discretion to enlarge the time for the Appeal;
(k) In the premises, Mr. Tam’s pleading point fails and I hold that the Court is entitled to decide the present case in accordance with the section 18 of the Ordinance and I so order.
28. Further, the Respondent relied heavily on the Court of Appeal decision of Chung Sau Ling v. Million Join Ltd. [2003] 4 HKC 561 (“the Million Join’s Case”). There, the applicant employee was injured in the course of employment on 12th June 1997 and commenced EEC proceedings on 2nd December 1998. On 13th January 1999, a consent order on liability with employees’ compensation to be assessed was made by the court. On 2nd October 2002, the respondent employer lodged an appeal out of time against the certificate of review issued by the Board notwithstanding a 2-year delay. H. H. Judge Muttrie granted the extension on 18th December 2002 and ordered that the appeal to be heard together with the assessment of the compensation.
29. The Applicant appealed but failed before the Court of Appeal. Mr. Justice Cheung JA held that a party who wishes to avail him or her of the Court’s direction to extend time to appeal under section 18 of the Ordinance must present the Court with the reasons for the delay.
30. Here, the Respondent hammered the point that until now, the Applicant has not explained the delay to lodge the Appeal by affirmation evidence. Hence, the argument runs, the Applicant has offered no explanation on the delay and the Court should not grant the extension.
31. With respect, I disagree. It is crucial to note that in the Million Join’s Case, Mr. Justice Cheung JA in fact said at pp. 563-564:
“14. That is as far as the explanation for the delay goes. There is no explanation why there was delay for almost another year before the application was made. The explanation was only given on the hearing of this appeal by Mr. Lin, counsel for the respondent, that the failure to lodge the appeal within time was due to the oversight of his solicitors[4] …
Explanation is required
16. … In order to enable the court to exercise its discretion it has to be provided with all relevant factors including the length of delay, the reason for the delay and the prejudice to the other party if the extension is granted and the merits of the application as well.
This court in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 has clearly stated that the nature of an s. 18 appeal is by way of a re-hearing. This, however, does not mean that the respondent is not required to explain the delay particularly a delay as long as two years. This together with the other factors that I have stated will enable the court to decide whether the overall picture of the case requires an extension of time to appeal to be granted.
18. In the present case given the explanation now provided by the respondent, the merits of the application clearly justify the granting of time …
23. Subject to the point about the lack of an explanation for the delay, the judge was correct to grant time to the respondent to lodge the appeal. Now that an explanation has been proffered, the applicant’s appeal from that decision is accordingly dismissed” (emphasis added).
32. In other words, in the Million Join’s Case, the ratio decidendi of the Court of Appeal was clearly that:
(a) The discretion under section 18 of the Ordinance is unfettered and the Court must conduct a holistic weighing exercise of the entire circumstances of the case before making a conclusion;
(b) The relevant factors would include the length of the delay, the reasons for the delay and the merits of the case;
(c) The Court shall form a provisional view (and without burrowing into the minute arguments on the relevant factors) but should pose the overriding question of:
“Whether the overall justice of the case requires an extension of time to appeal to be granted?”
33. In the course of his oral submissions, Mr. Tam conceded that I am entitled to determine whether the explanation of the Applicant on the delay in embarking upon the Appeal (if any) is acceptable.
The explanation for the delay
34. Mr. Tam also agreed that the following dates and incidents are accurate:
- On 30th May 2006, the Commissioner (upon the request of the Applicant) referred the Applicant’s case to the Director of Legal Aid[5];
- On 18th June 2006, the appeal period in respect of the Commissioner’s Review Certificate expired;
- On 25th September 2006, the Director of Legal Aid formally granted legal aid and assigned Messrs. Tang, Wong & Chow to assist the Applicant;
- On 3rd November 2006, the Application was taken out from the District Court against the Respondent.
35. The Applicant told me in his submissions that all along, he had been pursuing his case with the Commissioner and the Legal Aid Department. He also said that he was asked by Messrs. Tang, Wong & Chow in late September or early October 2006 to attend a conference with them but he could not recall the exact date.
36. At this particular juncture, Mr. Tam for the Respondent rose on his feet and vehemently protested that in the Million Join’s Case, the respondent (at first instance before H. H. Judge Muttrie) had filed affirmation evidence to explain the 1st year of the 2-year delay. Mr. Tam conceded that the respondent in the Million Join’s Case had not filed affirmation evidence to explain the delay in the 2nd year.
37. I allowed the Applicant to continue with his submissions and he further explained that he did intend to lodge the Appeal pursuant to section 18 of the Ordinance.
38. Mr. Tam also contended that from the date of the Commissioner’s Review Certificate until the date of hearing before me, the Applicant has not filed any affirmation evidence to explain and on that ground alone, the Court should not entertain the Appeal. I disagree for the following reasons:
(a) The facts of each case are different;
(b) The Court should be astute not to allow a hearing under section 18 of the Ordinance for extension of time to appeal to be unduly ossified;
(c) Generally speaking, when the Court is determining whether to enlarge the time to allow the Appeal to proceed, the Court will expect affirmation evidence from the party who is applying for time;
(d) That is only a matter of practice and may be departed from in appropriate circumstances of a particular case;
(e) Here, the documents before me showed clearly that:
- When the Commissioner transferred the Applicant’s case to the Director of Legal Aid for consideration, the appeal period was yet to expire;
- When the legal aid was granted to the Applicant, time under section 18 of the Ordinance had passed;
- Messrs. Tang Wong & Chow and the Applicant took further time to issue the Application;
(f) The Applicant frankly said that he did not know why it took Messrs. Tang Wong & Chow until 3rd November 2006 to issue the Application and he had entrusted the legal issues to the Director of Legal Aid and his assigned solicitors;
(g) No one is blaming Messrs. Tang Wong & Chow for dragging their feet but the objective fact remains i.e. when the legal representations were made available to the Applicant, the time under section 18 of the Ordinance had already expired;
(h) I also note that Mr. Tam (upon hearing the Application’s oral explanation to the Court concerning delay) did not apply for an adjournment to allow the Respondent to deal with it by way of affirmation evidence. Indeed, when the Applicant finished his oral submissions, Mr. Tam said he had no reply.
39. Mr. Tam meekly suggested that the Respondent would be prejudiced if time to proceed with the Appeal were to be extended because the Respondent may not be able to get the medical reports. I would reject that submission as not borne out by the materials placed before me and wish to highlight that:
(a) The Applicant has only received treatment and care from the Tuen Mun Hospital’s Accident & Emergency Department and Clinic;
(b) The Tuen Mun Hospital would have the medical history and records of the Applicant;
(c) Those medical archives in the Tuen Mun Hospital of the Applicant could be obtained;
(d) To date, the Respondent has not seen fit to ask the Applicant to provide his medical reports.
40. In the circumstances of the present case, I would hold that the Applicant has provided an acceptable explanation to explain the delay from the date of the Commissioner’s Review Certificate and the date of the Application. I must bear that explanation in my mind when I conduct the weighing exercise under section 18 of the Ordinance.
Merits of the Appeal
41. Clearly, I am not adjudicating the merits of the substantive appeal. In the light of the above, I do not consider that I should rehearse in details the Applicant’s claim for compensation under section 9 of the Ordinance. Obviously, I am dealing with the Preliminary Issue in Chambers on the basis of affidavit evidence.
42. I am handicapped in that I do not have the benefits of hearing viva voce evidence. On the basis of the materials placed before me, I am of the view that the Applicant’s case for compensation under section 9 of the Ordinance could only be resolved one way or the other at the end of a full-blown trial. In this regard, I note that the Applicant is complaining that because he was injured in the Accident, for the past 2 years, he has been unable to resume working as a security guard. Evidently, when it comes to the trial, the Court must consider all the evidence and apply the provisions of section 9 of the Ordinance to determine whether the Applicant should get additional employees’ compensation and if so, how much should be awarded to the Applicant. Those matters must, as matters stand, wait for another day in court.
43. Thus, my answer to the Preliminary Issue is:
“On the basis of the materials placed before the Court, the Court should exercise its unfettered discretion under section 18 of the Ordinance to grant an extension of time to the Applicant to embark upon the Appeal”.
Want of prosecution
44. Apart from contending that (as a preliminary issue) the Court should not grant an extension of time to the Applicant to pursue the Appeal, the Respondent deployed a second string to their bow by relying on the common law doctrine of dismissal of action for want of prosecution. The renowned and landmark decision of Birkett v. James [1978] AC 297 was cited to me.
45. When advancing the Dismissal Application, Mr. Tam clarified that the Respondent is not complaining about the disappearing witnesses or fading memories of their factual witnesses but solely grounding the Dismissal Application on inordinate and inexcusable delay. Mr. Tam informed me that the relevant period of delay was from the date of the Consent Order to the date of the Dismissal Application.
46. Stripped of all the legalities, the Dismissal Application boils down to an allegation by the Respondent that the Applicant is guilty of “inordinate and inexcusable delay in the prosecution of the present case and the Court should strike it out as an abuse of process”. The Respondent pointed out that the Applicant has failed to comply with the Consent Order.
47. In the recent Court of Appeal’s decision of New China Hong Kong Group Ltd. v. AIG Asian Infrastructure Fund LP & Others [2005] 1 HKLRD 383 where Mr. Justice Stone cogently said:
“69. In my judgment the appropriate approach to strike-out applications of this nature is that adumbrated by Auld LJ in Miles v. McGregor (unrep., Court of Appeal, 23 January 1998) wherein the learned Judge stated:
The emphatic articulation and the application by the court in Choraria [Choraria v Sethia [1998] CLC 625, CA] of this quite separate power to strike out proceedings for wholesale disregard of procedural rules because it constitutes an abuse of process of this court should not, however, be taken as a ready alternative to the court’s power to strike-out an action for inordinate and inexcusable delay. The abuse of process route is for cases of an exceptional nature where the conduct of the party in default amounts to an affront to the court and to its rules (Emphasis added).
70. Whilst it is right to record that this approach of Auld LJ, with its emphasis on “cases of an exceptional nature”, was not wholeheartedly embraced by the Court in Lace Coordinates Ltd. v. NEM Insurance Co. Ltd (unrep., Court of Appeal, 19 November 1998) – Hirst LJ observing that in his view all that Auld LJ was doing was “no more than sounding a note of caution that Arbuthnot Latham [Arbuthnot Latham Bank Ltd v. Trafalgar Holdings Ltd [1998] 1 WLR 1426] should not be applied too readily and that, as that case itself makes clear, something significantly more is needed than inordinate and inexcusable delay” – it is probable that the clear requirement for a significant further element within the factual equation before the “abuse of process route” can succeed in any given case is likely to elevate the case to something sufficiently out of the ordinary so as to merit the epithet “exceptional” …”.
48. Mr. Justice Woo, VP added that:
“13. While inordinate delay was to be viewed more seriously by the courts henceforth … it does not mean that mere delay, without more, would amount to abuse of process … In Barclays Bank Plc v Maling & Another [1997] EWCA Civ. 1480 (23 April 1997), following Teale v. McKay [1994] PIQR 508, Aldous LJ stated:
That case is a clear indication that mere delay, whether or not caused by incompetence, cannot amount to an abuse of process which will enable an action to be struck out. What is needed is disregard of the court’s orders. It may be that deliberate as opposed to negligent disregard may not be required (see Hytec Information Systems Ltd. v. Coventry City Council [1997] 1 WLR 1666) (Emphasis added)…”.
49. In the present case, was there any inordinate and inexcusable delay on the part of the Applicant to proceed with the Application? Looking at the matters of the present case in the round, I would hold that the Respondent has singularly failed to prove the inordinate delay because:
(a) Regarding timing, the following details appeared:
- On 3rd November 2006, the Application was issued by the Applicant;
- On 11th January 2007, the Consent Order was made whereby the parties agreed to litigate the extension of time issue of section 18 as a preliminary issue; by then, the Applicant still had the benefits of legal representations;
- On 19th February 2008, the Applicant issued the Dismissal Application; on that day, the legal aid for the Applicant had been terminated;
- On 17th October 2008, the Dismissal Application was heard by the Court;
(b) Plainly, there is insufficient evidence of inordinate delay caused by the Applicant;
(c) It must be remembered that on 21st August 2007, the legal aid was terminated;
(d) In Chan Lai-ha v. Park Lane Towers Ltd., DCEC268 and DCEC617 of 1996, unreported, 22nd April 2002 (“Chan Lai-ha’s Case”), the applicant (a kitchen worker) was injured twice respectively on 14th May 1994 and 18th August 1995. She issued DCEC268/1996 on 10th May 1996 and DCEC617/1996 on 17th October 1996. The proceedings did not progress and there was a hiatus of 4 years when on 29th November 2001, the respondent applied to strike out both sets of proceedings on the ground of inordinate delay;
(e) H. H. Judge Carlson, in a thorough judgment, allowed the respondent’s application and struck out the proceedings;
(f) Mr. Tam agreed that the delay in the present case is not as long as the one in Chan Lai-ha’s Case;
(g) The mere failure of the Applicant to comply with the Consent Order is also inadequate to lend support to the Dismissal Application;
(h) The Respondent has not shown any prejudice;
(i) The Dismissal Application is without any merits, legal and factual and I have no hesitation to dismiss it.
Orders
50. To sum up, I would hold that:
(a) The Preliminary Issue under the Consent Order is answered in the Applicant’s favor;
(b) An extension of time should be granted to the Applicant to proceed with the Appeal under section 18 of the Ordinance;
(c) The Dismissal Application should be dismissed;
(d) There be an order nisi on costs and that the Respondent shall pay the costs of the Preliminary Issue and the Dismissal Application (including the costs of hearing on 17th October 2008) to the Applicant;
(e) Such costs be taxed if not agreed.
51. I take this opportunity to thank Mr. Tam for his detailed written submissions and cogent oral submissions.
| | Frederick HF Chan |
| | Deputy District Court Judge |
Representations:
The Applicant, Mr. Hui Ching Mun, appeared in person;
Mr. Danny C. W. Tam of Messrs. T. S. Tong & Co., solicitors for the Respondent.
[1]This is the time lapse between the date when the appeal period against the Commissioner’s Review Certificate expired (i.e. 18th June 2006) and the time when the legal aid certificate was issued (i.e. 25th September 2006).
[2]Mr. Tam for the Respondent had agreed that was indeed the issue to be decided by the Court as a preliminary issue pursuant to the Consent Order.
[3]This was a unanimous judgment of Chan CJHC (as he then was), Wong and Le Pichon JJ (as they were then).
[4]Reading the judgment, it is fair to conclude that Mr. Kenny Lin provided the explanation from the Bar table.
[5]This information could be gleaned from the last paragraph of the Commissioner’s letter dated 4th September 2007 (in Chinese) to the Applicant.