LI KWOK SHING v. LAW KA FU t/a WING FAI ELECTRICAL ENGINEERING AND ANOTHER

CACV 212/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2002

(ON APPEAL FROM DISTRICT COURT

EMPLOYEES' COMPENSATION CASE NO. 654 OF 2000)

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D E C I S I O N

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Hon Woo JA:

This is an application dated 31 May 2002 by the applicant for leave to appeal out of time against the Order dated 26 March 2002 made by Judge Z E Li in the District Court pursuant to his judgment handed down on 29 November 2001. The Order was sealed on 17 April 2002.

2. The application was made out of an abundance of caution. In fact, the notice of appeal dated 20 April 2002 was filed on 22 April 2002 and notice of setting down the appeal was also filed on 22 April 2002. The respondents have not taken any point on the requirement of leave and they filed a respondent's notice on 11 May 2002.

3. The issues raised in the notice of appeal and the respondent's notice relate to questions of costs given rise by the application or otherwise of Order 22, rule 3 and Order 62, rule 10(2) of the Rules of the District Court on the one hand or alternatively Rule 20 of the Employees' Compensation Rules, Cap 282 on the other hand, which procedural rules are apparently in conflict. The present application was made out of caution because of the provisions of section 14(3)(e) of the High Court Ordinance that leave is required for an appeal "relating only to costs which are by law left to the discretion of the court or tribunal", although s 23 of the Employees' Compensation Ordinance does not impose a similar restriction on appeals against decisions on employees' compensation. The notice of appeal was taken out without leave on the basis of s 23 and on the ground that since the above provisions of the RDC (dealing with acceptance of payment into court) confer no discretion on the Judge regarding costs, section 14(3)(e) has no application.

4. Upon the application being made, at first, ex parte to this Court, on 3 June 2002 Rogers VP directed that leave should first be sought from the Judge. When the applicant applied by summons to the Judge for leave, the Judge was indisposed and Deputy District Judge R Yu adjourned the case for the Judge to decide. However, the Judge has been unavailable since. The matter returned to this Court, and on 2 September 2002 Rogers VP directed that it be listed before a single judge of this Court.

5. As the questions whether the Judge had any discretion as to costs and whether he properly made the order for costs now challenged by the applicant are to be determined by this Court upon the hearing of the appeal, it would not be appropriate for me to affect the determination of those issues by deciding whether leave to appeal is required. I appreciate that this application was taken out and is pursued purely out of caution, and I am satisfied in the circumstances as I attempt to set out above that there are good explanations for the delay.

6. By a letter of 13 November 2002, Messrs Hastings & Co, for the respondents, sought indulgence from me, which I granted, to be excused from attending today's hearing by counsel so as to save costs on the basis that the respondents have no objection to this leave application.

7. In all the circumstances, I think the only proper thing for me to do is to accede to the application de bene esse. This would give this Court the opportunity to decide the issues in this appeal so as to resolve the apparent conflict between the relevant statutory provisions. I grant leave as sought. I also order that the costs of this application be costs in the cause of the appeal.