POON HAU KEI v. HO SHUI KEUNG AND OTHERS

CACV 214/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 214 OF 1998

(ON APPEAL FROM EMPLOYEES' COMPENSATION CASE NO. 921 OF 1997)

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J U D G M E N T

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Rogers, J.A. :

1. This is an application for leave to take the matter to the Court of Final Appeal.

2. The grounds upon which it is said that leave should be given are that there is question of law involved in this application as regards section 24(1) of the Employees Compensation Ordinance and that the question is one of great general or public importance. The matter is put in this way :-

"The question of law involved in this application is whether the word 'undertaken' in the context in Section 24(1) of the Employees Compensation Ordinance Cap. 282, insofar as that Section defined 'principle contractor' connotes :

(1) The performance of the work directly; or

(2) causing that work to be performed by others;"

3. In my view, it is important to consider the manner in which this case has arisen. The case arose as an appeal from H.H. Judge To whereby he allowed an amendment to the proceedings to join Hsin Chong Construction Co. Limited Taylor Woodrow International Limited Joint Venture as the 2nd Respondent. That party appealed to this Court and this Court held that the Judge should not have joined them as parties to the proceedings. This Court dealt with the issue on the basis that although it had been an application to amend proceedings, if the appeal succeeded, the effect of it would be to deny the claimant action against the 2nd Respondent. This Court dealt with the matter on the basis that the matter had to be clear and that the Court had to be satisfied on the same basis as that upon which pleadings would be struck out. This Court came to the clear conclusion on the construction of Section 24(1) that the proceedings in this case would not lie.

4. In my view, nothing that has been said this morning has changed my mind in that respect. In my view, the question of statutory construction is plain and this Court should not give leave to take the matter to the Court of Final Appeal.

Liu, JA:

5. I agree. The way in which the law now set out before us for further appeal was canvassed and applied has not persuaded me that leave should be granted under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

Nazareth V-P :

6. Put shortly, what was decided in the judgment and is now sought to be questioned was that the word "undertaken" in s.24(1) of the Employees' Compensation Ordinance (Cap. 282) did not embrace what HCTW undertook to do and did not subcontract under the Management Contract. This was, as stated in the recitals, first, that HCTW would secure the carrying out and completion of the project, including certain services that were specified in the Schedule. And secondly in Article 1 that HCTW would "set out, manage, organise, supervise and secure the carrying out and completion of the Project". It was thus primarily a matter of construction of the expression "undertaken". We gave our reasons.

7. I have to say that I can easily see the importance of the question in the proposed appeal. But it seems to me that if that question does not arise in the particular circumstances here, its importance counts for little. I can see also that having regard to the purpose of s.24 and of the Employees' Compensation Ordinance, and the incidence and scale of construction work that these might possibly call for a purposive construction which might just conceivably extend the meaning of "undertaken". But the judgment of this Court was given upon the specific facts of this case, particularly what HCTW itself undertook and did not subcontract. In that light, I have some difficulty in accepting that a question of great general or public importance arises.

8. In these circumstances it seems to me that it is not appropriate for leave to be granted and that the matter should be left to the Court of Final Appeal itself, if it deems fit, to grant leave. Nor does it seem to me appropriate in the circumstances that I should dissent from the views of my brothers.

9. Leave to appeal is accordingly refused.