YUNG KING v. KA MING HOP YICK ENGINEERING CO. AND OTHERS

DCEC655/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO.655 OF 2000

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JUDGMENT

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Introduction

1. This is an application by the applicant to seek leave to amend the Notice of Application filed on 26 July, 2000 by adding to it an appeal from a review of an assessment of the Ordinary Assessment Board. Under section 18 of the Employees' Compensation Ordinance (Cap 282) ("the Ordinance"), such an appeal should be brought within 6 months from the date of the issue of the Certificate of Review of Assessment unless the court grants an extension of time. Here the Certificate of Review of Assessment was issued on 17 August, 2001. However, this application to lodge an appeal against the Certificate was only taken out on 29 July, 2002. This means that this appeal was some 6 months late.

2. No extension of time was, however, expressly sought in the summons before me. At the hearing, Mr. Cheng, solicitor for the applicant, sought leave to add to the summons an application for extending the time for appealing against the assessment. Very fairly, Miss Leung, solicitor for the respondents, did not oppose this application for so amending the summons, and leave was granted accordingly.

The application for extension of time

3. According to the applicant, this application for employees' compensation arose out of an accident that took place on 8 December, 1998 in the course of his employment with the 1st respondent who was a sub-contractor of the 2nd respondent. The 2nd respondent was a sub-contractor of the 3rd respondent who was the principal contractor. It appears that the applicant's right hand and right leg were injured. His claim for employees' compensation came before the Ordinary Assessment Board on 20 April, 2001. His loss of earning capacity was assessed at 4% and the Certificate of Assessment was issued on 4 May. 2001. On 3 August, 2001, the assessment was reviewed by the Ordinary Assessment Board. However, the assessment of his loss of earning capacity remained at 4%. It appears from the Certificate of Assessment and the Certificate of Review of Assessment that the assessment was confined to the injuries to the right thumb and the right index finger.

4. In fact, the applicant was examined by Dr. Danny Tsoi back in May, 2000 well before the assessment by the assessment board. In his report, Dr. Tsoi was of the view that the applicant sustained injuries to the right hand and the right foot as a result of the accident. But he did not think that the back pain and the urinary and sexual problem which the applicant complained of had anything to do with the accident. Mr. Cheng confirms to me that if an extension of time is granted by the court, the appeal under s. 18 would be confined to the injuries to the right hand and the right foot only.

5. The explanation given by the applicant for lodging this appeal against the assessment late is this. He had to locate the MRI scan of his lumbar spine prior to the accident in order for Dr. Tsoi to give a further opinion on his injuries. The MRI scan was eventually provided to Dr. Tsoi in June, 2002. However, Dr. Tsoi found himself unassisted by the MRI scan at all which was taken nearly 10 years ago.

The discretion of the court

6. Section 18 of the Ordinance provides as follows:

(1) Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA.

(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be;

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.

(3) On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.

7. In Ng Ming Cheong v Mass Transit Railway Corp. [1997] 3 HKC 413, it was held by the Court of Appeal that the assessments of the Ordinary Assessment Board and the Special Assessment Board were to be final unless appealed within a limited period of time under s 18 of the Ordinance. As regards the nature of an appeal under s.18, it is clear from the Court of Appeal's decision in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 that the District Court's jurisdiction is not truly appellate. In that case, Hunter JA said (at p.118):

".......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 so 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."

8. An appeal under s.18 is therefore distinguishable from an ordinary appeal where the merits have already been tried by the court. Because of this very different nature of the appeal which is by way of a de novo hearing, the line of authorities governing the grant of an extension of time for appeal (see Secretary for Justice v. Hong Kong & Yaumati Ferry Co. Ltd. [2001] 1 HKC 125) is, in my view, not applicable here.

9. Miss Leung submits for the respondents that the applicant has to show reasonable excuse before an extension of time should be granted. S. 14(4) of the Ordinance enables the court to receive and determine any application for compensation out of time if it is satisfied that there was reasonable excuse for the failure. However, s.18 does not impose a similar restriction on granting an extension of time. In the absence of such a statutory restriction, I do not think it is right for the court to impose one indirectly or as a matter of practice. My view is reinforced by the case of Chung Lung Shun v. Adams Parking (International) Ltd [1996] 3 HKC 50, where the Court of Appeal held that there was no application of the provisions of s. 14 of the Ordinance to an appeal under s 18.

10. The wording of s.18(2) is clear and unambiguous: "the Court may, if it thinks fit, extend the time". I consider that this gives the court an unfettered discretion to grant an extension of time to appeal under s.18. In Costellow v. Somerset County Council [1993] 1 WLR 256, Sir Thomas Bingham M.R. (as he then was) said:

"Cases involving procedural abuse (such as the Hytrac case [1983] 1 W.L.R. 44) or questionable tactics (such as Revici v. Prentice Hall Incorporated [1969] 1 W.L.R. 157) may call for special treatment. So, of course, will cases of contumelious and intentional default and cases where a default is repeated or persisted in after a peremptory order. But in the ordinary way, and in the absence of special circumstances, a court will not exercise its inherent jurisdiction to dismiss a plaintiff's action for want of prosecution unless the delay complained of after the issue of proceedings has caused at least a real risk of prejudice to the defendant. A similar approach should govern applications made under Orders 19, 24, 25, 28 and 34. The approach to applications under Ord. 3, r. 5 should not in most cases be very different. Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs. In short, an application under Ord. 3, r. 5 should ordinarily be granted where the overall justice of the case requires that the action be allowed to proceed."

11. This, I think, provides a useful guide to the way in which the discretion to extend time under s.18 should be exercised. Save in special cases or exceptional circumstances, an extension of time under s.18 should ordinarily be granted if it will cause the other party no prejudice for which he cannot be compensated by an award of costs. An absence of a satisfactory explanation does not, per se, disentitle a party to seek an extension of time. The exceptional circumstances may include those cases involving procedural abuse or questionable tactics or cases devoid of any merit. However, parties should not seek to investigate in detail the merits of the appeal on an application for an extension of time. A detailed examination of the merits merely blows the case up into a large interlocutory hearing involving great expenditure of both money and time, and turns the hearing into a mini-appeal on inadequate material and without any hearing of the evidence. For myself I disapprove any attempt to go into the merits of the appeal at this stage, unless it can clearly be demonstrated that the appeal lacks any merit.

The Ruling

12. I am not impressed by the explanation given by the applicant at all. I fail to see why the lodging of an appeal against the assessment had to be postponed until the applicant located the old MRI Scan which turned out to be of no use to Dr. Tsoi. I have no difficulty whatsoever in finding that the explanation was not a satisfactory one. However, as I have said, a party should not be denied an extension of time simply because he fails to justify the delay. The most important question here is whether the respondents will suffer any prejudice which cannot be adequately compensated by costs if an extension of time is granted. The respondents cannot demonstrate to me that they will suffer any. Nor can they say that the appeal has no merits. On the other hand, if an extension of time is refused, the applicant will be bound by the Certificate of Review of Assessment in question and will be precluded from adducing any evidence to show that he suffers a greater loss of earning capacity. In the circumstances, I consider it unjust to deny the applicants an extension of time, and I would exercise my discretion by granting the applicant the extension of time he seeks and allowing the application to amend the Notice of Application in terms of paragraph 1 of the amended summons. I see no reason why the applicant should not bear the costs of this application as he seeks indulgence from this court. Accordingly, there be an order nisi that the costs of the application including the costs of the hearing be to the respondents to be taxed if not agreed in any event and that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations.