WU LIYANG v. SHUN CHEONG INDUSTRIAL (HK) CO LTD AND OTHERS

CAMP 305/2019

[2021] HKCA 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 305OF 2019

(ON AN INTENDED APPEAL FROM DCEC 669/2015)

________________________

________________________

___________________

JUDGMENT

____________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against a judgment of Deputy Judge R Lee in DCEC 669/2015. In the judgment of 23 September 2019, the Judge dismissed the claim of the Applicant.

2.  A notice of appeal was actually issued by the Applicant on 22 October 2019 in CACV 490/2019.  The Notice of Appeal was endorsed with certificates of service on the Respondents.

3.  The services were made by the post and the address of the 2^nd Respondent was in Shenzhen.

4.  Due to the reckoning of date of service in relation to service by post, the services were slightly out of time.  Moreover, service could not be effected outside the jurisdiction without leave.

5.  On 2 December 2019, Kwan VP directed that an extension of time to appeal should be made.  Thus, the present application was brought by a summons of 3 December 2019.

6.  The application took a long time to come before us because of the complication arisen from the need to obtain leave to serve outside jurisdiction.  This has been taken care of.  Time was also taken up due to lack of response from the 1^st and 2^nd Respondents.

7.  We are satisfied that all the respondents had been duly served with the present application.  Amongst them, only the 3^rd Respondent lodged submissions in the application.  In those submissions, the 3^rd Respondent did not oppose the application and only asked for costs of the same.

8.  The grounds of appeal are set out in the Notice of Appeal.  Having considered the same in light of the judgment of 23 September 2019, though the focus is on the finding by the judge that the 1^st Respondent was not the employer of the Applicant, we accept that the appeal is reasonably arguable.  Though there was a ground of appeal contending that the 2^nd Respondent was the employer, such contention was clearly advanced by way of alternative only.  

9.  Having read the submissions of the Applicant, we accept that the delay was excusable.  This is a case where all the Respondents had been put on notice in good time that the Applicant was seeking to appeal.

10.  We are satisfied that this is a proper case for extension of time to be granted after considering (a) the length of delay; (b) the reason for the delay; (c) the prospect of success in the appeal; and (d) the prejudice to the other parties.

11.  We would grant an extension of time to the Applicant to appeal against the judgment of 23 September 2019.  Though usually the Applicant should serve and file a fresh notice of appeal after an extension is granted, in the particular circumstances of this case bearing in mind that this is an employee’s compensation case and the time taken for service on the 2^nd Respondent, and the fact that all the Respondents have already been properly served with the application, we would direct that such issue and service of fresh notice of appeal is dispensed with.  We also direct that the appeal shall be continued to be prosecuted under CACV 490/2019.

12.  The 3^rd Respondent asked for costs of this application since it is a matter of indulgence and they had to incur costs to review the application before deciding not to oppose the same.

13.  On the other hand, the Applicant submitted that there should be no order as to costs.

14.  We agree with the 3^rd Respondent and therefore order the Applicant to pay the costs of the 3^rd Respondent in this application.  Solicitors for the 3^rd Respondent did not lodge any statement of costs as required under Practice Direction 4.1.  Having regard to the simple nature of the matter and the works undertaken, we would fix the 3^rd Respondent’s costs at $6,000.