HO TZE YING CONNIE v. AVIATION SECURITY CO LTD

DCEC 653/2018

[2022] HKDC 988

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 653 OF 2018

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DECISION

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1.  This is the applicant’s application for leave to appeal out of time of the decision of the court dated 27 April 2022 (“the Decision”).

APPLICATION OUT OF TIME

2.  Under Order 58 r 2(4B), the application for leave to appeal has to be made within 28 days by way of an inter-parte summons.

3.  However, on 24 May 2022, the applicant filed an ex-parte summons. When this was pointed out by the court on 26 May 2022, the applicant filed an inter-parte summons, the next day, on 27 May 2022.

4.  The deadline under Order 58 fell on 25 May 2022 so the application was 2 days late.

5.  It is trite that where a delay is inexcusable although insubstantial, the applicant faces a higher threshold, ie the party must show a real prospect of success on merits and not simply the test of a reasonable prospect of success (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

6.  In addition, the respondent also argued that there ought to be an affidavit accounting for the delay (KNM v HTF unreported, HCMP 288/2011, 7 September 2011).

7.  Thus, the preliminary issue before the court is whether the higher threshold should be applied in this application for leave to appeal.

8.  In my view, I do not think that this is an “inexcusable” delay. Even without the assistance of an affidavit, it is clear that the applicant did file an application within the time limit but mistakenly labelled it an ex-parte summons. This was clearly an innocent mistake. Further, the applicant made amends within a day of being notified by the court so the actual delay should be insignificant: 2 days.

9.  As such, I would think that the “reasonable prospect of success” test should still be applicable.

LEAVE FOR APPEAL

Background

10.  The background of the case has been stated in details in paragraphs 2-10 of the Decision (Hearing Bundle pages 71-2 to 71-3) and needed not be repeated here. In short, there is no dispute that a related PI Action was settled and that was the reason why this EC action was discontinued by the applicant, with costs of the action to be reserved for argument which was dealt with in the last hearing and the Decision.

11.  According to paragraph 4 of the Written Submissions on Grounds of Appeal, the applicant advanced on 4 grounds of appeal.

12.  Although there were mentions in the appeal grounds a) and d) that there were “errors in law”, during the hearing, the counsel for the applicant, Ms Poon, confirmed that there was no dispute that the applicable test for the issue of costs in discontinued case is that the “bound to win” test adopted in the Decision, that is, the general rule that the party seeking discontinuance pay costs unless that party can demonstrate to the court that its case is “bound to win”, that is, “certain of success” which means “the defence if found would be open to striking out under Order 18 Rule 19…” (paragraphs 11 and 12 of the Decision, quoting Wu Rufang v Xiao Yongru trading as Chien Kee Plastic Materials unreported DCEC 558/2013 and Leung Yuen Ching v Leung Yuet Kun HCA 9924/2000 ).

13.  When it was put to Ms Poon that this must mean that the said grounds were not based upon errors in the application of the law, she argued that “not considering all the facts of the case is also an error in law”.

14.  I think Ms Poon was clearly misconceived: a ground of appeal arguing that the court has erred in “not considering all the facts of the case” is the ground of error in finding of facts, not error in the application of law.”

MISREADING THE DECISION

15.  In Ms Poon’s Skeleton Submission, under paragraph 17, she submitted that the court “erred in coming to the conclusion that the accident did not occur in the course of the applicant’s employment”.

16.  I am of the view that she misread the Decision. There was no such finding by the court: as stated under the conclusion of the Decision, paragraph 42:-

“Having looked at all the circumstances of the case…I cannot see how the applicant has demonstrated that her case is so strong that she is bound to win.”

17.  Under the wrong presumption, Ms Poon proceeded to re-hash the arguments which had been discussed in the first hearing.

THE GROUNDS OF APPEAL

18.  Ground a) concerned with re-arguing that the applicant was “confined” to the have lunch at the airport and that the facts should be much like the cases of Leung Hak Chai and Hatzimanolis.

19.  Ground b) concerned with re-arguing that the applicant was wearing uniform and would be required to work during meal break if asked. This evidence is disputed by the respondent.

20.  In each of ground a) and b), the applicant sought to re-hash the same arguments. Ms Poon was at pains to present more precedents and sought to argue how these cases share some similar features to the current case and so should apply to the current case.

21.  There is no need to go into details of each of these new cases: Ms Poon agreed with the court that each case must turn on its own facts (as stated in paragraph 31 of the Decision). The Decision has already looked at a number of cases and discussed how one or the other might apply or be distinguished from the current case (and more importantly, whether such makes the applicant’s case “bound to win”).

22.  Ms Poon did not raise any specific error in this discussion in Decision but instead appeared to be asking the court to continue with this exercise by presenting more and more cases. These are clearly inappropriate grounds of appeal and therefore have no reasonable prospect of success.

23.  Ground c) is a dispute about paragraph 30 of the Decision which stated: “…it is not in dispute that the respondent neither induce nor encourage (the applicant) to have lunch at the restaurant”.

24.  The applicant sought to argue that by allowing the applicant to wear uniform, the respondent had “induce and encouraged” staff to have lunch at the airport.

25.  I think this is again a misreading of the Decision. The discussion concerned with whether the respondent had induced or encouraged the applicant to have lunch at the restaurant, and not to have lunch at any restaurant inside the airport. In any case, I fail to see why wearing a uniform would be an inducement for the wearer in have lunch within the airport. I do not think that Ms Poon has reasonably elaborated the logic behind this argument.

26.  There is clearly no reasonable prospect of success of an appeal on this ground.

27.  Ground d) is a dispute with the court’s comparison of the applicant returning the walkie-talkie with an “off work doctor” returning his on-call device and whether this “might raise a reasonable argument that this was not a period where the applicant was doing “on-call” duty…but rather…would only be recalled if there was…an unexpected “all hands on deck” event.”

28.  This “on-call” situation was hotly disputed by the respondent so the discussion was whether a reasonable argument could be raised and thus the applicant was not “bound to win”.

29.  The applicant’s dispute is simply re-hashing her case which has been presented before. This would not make her case “bound to win”. This ground of appeal therefore has no reasonable prospect of success.

CONCLUSION

30.  The appeal is not a re-run of the same arguments. The applicant ought to point out specifically what the court had gone wrong in the exercise of the discretion of awarding costs. The applicant has failed to do so.

31.  As such, I find that none of the grounds of appeal has any reasonable prospect of success and therefore ordered that the application for leave to appeal (out of time) to be dismissed, with costs to the respondent with Certificate for Counsel.

32.  If there is no agreement on costs, the respondent shall lodge and serve a summary bill of costs within 14 days and the applicant shall lodge and serve a summary list of objections 14 days thereafter. The costs shall be summarily assessed on paper thereafter.