LIMBU LAXMI PRASAD v. DRAGAGES (HK) JOINT VENTURE

HCMP 197/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 197 OF 2009

(ON AN INTENDED APPEAL FROM DCEC NO. 1227 OF 2006)

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REASONS FOR DECISION

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Extension of time of appeal

1.  On 24 October 2007 H H Judge Lok dismissed the applicant’s claim for employees’ compensation arising from an industrial accident on 27 September 2004. 

2.  On 4 February 2009 the applicant issued an application for extension of time to appeal against the judgment.

Relevant factors

3.  In an application for extension of time to appeal the court will take into account four relevant factors :

(1)  the length of the delay;

(2)  the reason for the delay;

(3)  the merits of the proposed appeal; and

(4)  prejudice that may occur to the respondent if extension of time is granted.

Length of the delay

4.  Section 23(4) of the Employees’ Compensation Ordinance (Cap. 282) provides that the appeal must be lodged within 30 days from the date of the order of the court.  The judgment below was given on 24 October 2007.  It was received by the applicant on the same date.  30 days from the order means the appeal must commence on or before 23 November 2007.  The applicant only took out the application for extension of time on 4 February 2009.  This means about 14½ months have lapsed before the application was issued.  This is a substantial delay.

Reason for the delay

5.  Apart from stating that he delayed the appeal because he did not know the procedure, the applicant had not given any explanation why it took him so long for him to consider appealing against the judgment.  Although he said he thought he was going to receive money from the respondent, as it turned out there was an application by the respondent to withdraw the money that was paid into court to meet the applicant’s claim.  The judge ordered the money to be paid out to the respondent.  A Nepali interpreter was present at the hearing.  There could not be any misunderstanding on the part of the applicant on what had actually transpired.  In my view, no reasonable explanation has been given by the applicant for the delay. 

Merits of the proposed appeal

6.  The Court has to consider whether the applicant has a reasonable prospect of success in the proposed appeal.  The issue before the judge was whether the applicant’s hearing was affected as a result of an accident at work.  Although the applicant’s expert claim that the applicant’s hearing was impaired, the judge, after considering the whole of the evidence in the case, came to the view that the applicant’s hearing was not impaired at all.  The evidence considered by the judge included tests conducted on the applicant which did not require any subjective response from him.  For example, the tests that were conducted were to determine the response of the pressure in the applicant’s middle ear, his reflex of the inner ear and whether there were waveform in the nerve of the ears when certain stimuli was made.  There was also an MRI brain scan which showed that the applicant was not suffering from any structural damage to either his brain or ears. 

7.  In my view the judge had ample evidence to justify his finding.  Hence the applicant has not shown that he has a reasonable prospect of success. 

Prejudice to the other party

8.  As this is a single party application I do not have the evidence of prejudice of the other party except the usual prejudice that one may envisage if the appeal is allowed to proceed despite the delay.

My view

9.  Even without prejudice on the part of the respondent I am still of the view that by reason of the long delay, the lack of reasonable explanation for the delay and the lack of merits of the proposed appeal, I should not grant extension of time to the applicant.

Conclusion

10.  Accordingly the application was refused.