WAN MIU SUM v. HING LUNG HOLDINGS LTD

DCEC 1512/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1512 OF 2007

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DECISION

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Background

1.  This is an unfortunate case where the Applicant ("Mr. Wan"), was seriously injured as a result of acid or chemical substance being thrown at him when he was boarding his employer's vehicle near his employer's office in Tai Po, at about 6:30 p.m. on 16 January 2004.  As a result of the attack, Mr. Wan sustained serious injuries on his face, eye and hands.

2.   On 22 December 2007, Mr. Wan commenced employee compensation proceedings against his employer, Hing Lung Holdings Ltd. ("Hing Lung"), claiming that the injuries were sustained by an by accident arising out of and in the course of his employment by Hing Lung.  According to paragraph 2 of the Application filed ("Application"), Mr. Wan pleaded that the Application was made for "compensation under section 9, 10,10A" of the Employees Compensation Ordinance ("the Ordinance").

3.  Hing Lung, the Respondent, immediately filed an Answer on 23 January 2008 to plead that Mr. Wan has failed to issue the Application within 24 months from the date of the accident on 16 January 2004, and that it should not be maintained.  At the same time as filing the Answer, Hing Lung applied to the Court for an order that the Application issued by Mr. Wan be struck out.

4.  On 25 January 2008, Mr. Wan originally applied by summons to the court under s.14(4) of the Ordinance for leave to proceed with his Application despite the fact that it was not made within 24 months from the date of the accident.  Hing Lung's application for striking out and Mr. Wan's application for leave to proceed with the Application out of time were originally adjourned for argument, and for filing of evidence.

5.  On 11 April 2008, Mr. Wan made a further application to the Court for leave to amend paragraph 2 the Application to seek, by way of relief or order of the Court, payment by Hing Lung of compensation in the sum of $1,339,993.92 as certified by the Commissioner for Labour ("Commissioner") as being payable by Hing Lung to Mr. Wan by virtue of the Certificate of Review of Compensation Assessment dated 25 August 2006 under s.16A (5) of the Ordinance ("Form 6"), or alternatively, for compensation under ss.9, 10, and 10A of the Ordinance as originally sought.

6.  On 2 June 2008, Mr. Wan made yet a further application for leave to amend the summons for leave to proceed issued on 25 January 2008, to seek an order from the court that Form 6 be enforced by the Court under s.18A(2) of the Ordinance, and/or be made an order of the Court under s.16A(8).  The application for leave to proceed out of time under s.14(4) of the Ordinance was sought in the alternative.

7.  At the commencement of the hearing before me on 17 June 2008 of the adjourned application for striking out and application to proceed under s.14(2), and the hearing of the summonses to amend the summons of 25 January 2008 and the Application, Counsel for Hing Lung indicated that Hing Lung did not object to the applications to amend.  Accordingly, I granted orders allowing these amendments.

8.  In view of the consent to the amendment of the Application, the remaining issues between the parties are:

(1)   whether an order should be made for enforcement of Form 6 without the matter proceeding to trial; and

(2)   whether the limitation of 2 years under s.14 of the Ordinance applies to an application for enforcement of Form 6.

Whether an order should be made for enforcement of Form 6 without the matter proceeding to trial

9.  There is no dispute between the parties that Form 6 was issued by the Commissioner on 25 August 2006.  This followed the Commissioner's issue of Form 7 on 5 July 2006, whereby Mr. Wan was assessed as having suffered, by way of injury, chemical burn resulting in right eye near total blindness, left eye visual loss and burn scar over face and upper limbs, and 97.5% loss of earning capacity permanently caused by the injury.  The Commissioner had also issued a Certificate of Compensation Assessment (Form 5) on 12 July 2006, whereby the Commissioner assessed the total compensation payable to Mr. Wan as a result of the injury at $1,236,986.67.  Hing Lung appealed against Form 5 on the basis that the monthly earnings of Mr. Wan were $11,916 at the time of the accident, and not $11,000 adopted in the calculations shown on Form 5.  This appeal led to the issue of Form 6, whereby the total compensation payable was corrected and assessed at $1,339,993.92.

10.  Neither Mr. Wan nor Hing Lung has appealed against either Form 6 or Form 7.  There is no application to cancel the certificates issued by the Commissioner.

11.  It is clear from the decision of the Court of Appeal in Lam Chi Biu v. Mak Kee Ltd & Anor [2005] 3 HKC that absent any application pursuant to s.16A or any application under s. 16B, a s.16A certificate is conclusive evidence through the appeal procedure not being invoked.  However, a s.16A certificate is binding on me as to quantum only, and is not binding as to liability.  There is nothing in the Ordinance which contemplated that the Commissioner should determine the issue of liability, which has to be adjudicated by the District Court under s. 18A of the Ordinance.

12.  It is clear from the Answer filed on behalf of Hing Lung in these proceedings on 23 January 2008 that Hing Lung denies that the accident arose in the course and out of Mr. Wan's employment with Hing Lung.  On the clear authority of Lam Chi Biu, the court should determine the issue of liability under s.18A of the Ordinance, instead of issuing an order at this stage for the enforcement of the assessment made by the Commissioner under Form 6.

13.  Counsel for Mr. Wan argued that from the time notice of the accident was given by Hing Lung to the Commissioner under Form 2 on 13 February 2004, Hing Lung had never denied that the accident arose in the course and out of Mr. Wan's employment.  In Form 2, a representative of Hing Lung stated that the accident occurred when Mr. Wan and Madam Wan were waiting for the company vehicle, and that they were to go to a construction site to discuss the design plans of a new building.  According to Form 2, Hing Lung carries on business of property development.

14.  Counsel for Mr. Wan referred to the affirmation of Miss Wan which was filed on behalf of Hing Lung in support of Hing Lung's application to strike out the Application, and in opposition to Mr. Wan's application to proceed with the Application out of time and to amend the Application.  It was argued that Miss Wan made the affirmation as a partner of the solicitors' firm on the record in these proceedings as acting for Hing Lung, and who was authorized by Hing Lung's insurers, Bank of China Group Insurance Company Ltd. (" Insurer") to conduct the proceedings on behalf of Hing Lung.  In her affirmation, Miss Wan states that the issue of liability has all along been in dispute between the parties.  She further claims that the Application can only proceed under s.18A of the Ordinance, and that compensation can only be awarded after the issue of liability is determined.

15.  Counsel for Mr. Wan submits that Hing Lung's declared position in Form 2 should prevail over the statements made by Miss Wan in her affirmation as to liability being in issue between the parties.  He claims that Miss Wan is not a director or officer of Hing Lung, nor a member of the Insurer's staff.  Counsel also argued that the Insurer is not a party in these proceedings, and if there is a conflict of interests between the Insurer and Hing Lung, Miss Wan should not act for both the Insurer and Hing Lung.

16.  If Hing Lung claims that Miss Wan or her firm has a conflict of interests and should not act for Hing Lung in these proceedings, it is for Hing Lung to seek the appropriate relief either by making any necessary application to the Court, or by recourse to the Law Society.  So far as these proceedings are concerned, Miss Wan’s firm  is on the record as Wing Lung's solicitors.  Miss Wan's affirmation is stated to have been filed on behalf of Hing Lung, and the Answer dated 23 January 2008 is filed on behalf of Hing Lung.  Even if I was to ignore totally Miss Wan's affirmation, the Answer clearly pleads that Hing Lung opposes the Application, and that it is denied that the accident arose in the course and out of Mr. Wan's employment with Wing Lung.  From the Answer itself, it is clear that liability is unavoidably in issue.  Nor has any officer or employee of Hing Lung come forward to make and file any affirmation to state, on behalf of Hing Lung as opposed to the Insurer, if that is indeed its position, that Hing Lung does not dispute liability and does not deny that Mr. Wan's accident arose in the course and arising out of his employment by Hing Lung.  I am drawn to conclude, in the light of the Answer filed on behalf of Hing Lung on 23 January 2008, and notwithstanding Form 2 filed on 13 February 2004, that liability is in issue in these proceedings.

17.  In the light of the decision in Lam Chi Biu and in view of the denial of liability in the Answer, Mr. Wan's Application should proceed to trial for the Court to determine the question of liability before any order for enforcement of the assessment made under Form 6 can or should be made.

Whether the limitation of 2 years under s.14 of the Ordinance applies to an application for enforcement of Form 6 issued

18.  Hing Lung's application for striking out is on the basis that the Application issued on 27 December 2007 is not maintainable since it was not issued within 24 months from the occurrence of the accident on 16 January 2004.

19.   Whereas the original Application simply sought "compensation under s.9, 10, and 10A of the Ordinance", the Amended Application makes it clear that Mr. Wan seeks payment from Hing Lung of the amount of compensation certified by the Commissioner under s. 16A (5) of the Ordinance, by way of enforcement of Form 6.  It is clear from the decision of the Court of Appeal in Chung Lung-shun v. Adams Parking (International) Ltd. [1996] 1 HKLR 49 that s. 14 of the Ordinance is confined to the making of an employee's application for compensation to the court under s. 18 of the Ordinance, and not to the administrative framework for assessments made by the Commissioner, including an assessment made under s. 16A.  The time limit applicable for assessments made under s.16A is provided for in s.16A (1A), which refers to the Commissioner's assessment of a "claim for compensation which arises within 24 months after the happening of the accident".  In this case, Form 2 was filed on 13 February 2004, clearly within the two-year period.  No question of time bar can arise, and the striking out application must fail.  Nor is leave necessary under s.14 (4) to proceed with the Application, when s.14 has no application.

20.   Since the precise nature of Mr. Wan's claim for relief is only made clear by the amendments made to the Application, I consider that the most appropriate order of costs to make on Mr. Wan's summons for leave to proceed under s.14 (4), and on the summons to strike out, including the costs of the hearing on 17 June 2008, is that costs should be in the cause.  As for Mr. Wan's summonses for leave to amend the Application and to amend the summons issued on 25 January 2008, the costs of these summonses should be paid by Mr. Wan.  I will accordingly make such costs orders nisi, with certificate for Counsel.