NG YIM KUEN v. CHAN SAI WAI

[English Translation― 英譯本]

CACV 45/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 2015

(ON APPEAL FROM DCEC NO. 2023 OF 2014)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1. This is an appeal by the applicant against the decision of District Court Judge Levy (“the trial judge”) striking out her application form in District Court Employees’ Compensation Case No. 2023 of 2014 (“DCEC 2023/2014”).

DCEC 2023/2014

2. The applicant was employed by Hing Wah Promotion Ltd. (“Hing Wah”) as a shipping clerk between 1988 and July 1998.

3. The respondent was a shareholder and director of Hing Wah.

4. The applicant commenced the case of DCEC 2023/2014 in the District Court on 3 October 2014 to claim employees’ compensation from the respondent.

5. According to the Employees’ Compensation Application Form 1(“the Application Form”) filed by the applicant, the applicant suffered personal injury by accident arising out of and in the course of the employment [para. 1(a)]. At that time, the applicant was a shipping clerk [para. 3(2)] and the accident happened at the address of Hing Wah in Shun Tak Centre, Sheung Wan. At that time, the nature of work performed by the applicant was operating a computer [para. 3(3)] and the nature of her injury was degenerative cervical vertebrae [para. 3(4)].

6. The applicant mentioned repeatedly in the pages attached to the Application Form that she had been employed by Hing Wah as a shipping clerk from 1988 to 1997 and when Hing Wah was relocated to Shun Tak Centre, Sheung Wan in 1997, the substandard computer desk and seat caused her to suffer from degenerative cervical vertebrae and discs. The applicant averred that the respondent was “the boss and person in charge”, and demanded compensation from him.

7. The respondent issued a summons on 11 November 2014 applying to have the Application Form struck out pursuant to Order 18, Rule 19 of the Rules of the District Court, Cap. 336H of the Laws of Hong Kong. The respondent put forward two principal grounds for his application: Firstly, at the time when the alleged accident happened, the applicant was employed by Hing Wah and not the respondent. Secondly, the injury allegedly sustained by the applicant was inflicted over 17 years ago, which exceeded the limitation period of 24 months stipulated by Section 14(1) of the Employees’ Compensation Ordinance, Cap. 282 of the Laws of Hong Kong. Regarding the respondent’s application, the applicant filed an affirmation in opposition and some medical documents of hers were also submitted.

8. The trial judge gave her judgment on 23 January 2015 after a hearing. She granted the respondent’s application, ordered the Application Form to be struck out, and made an order nisi that the applicant shall pay the costs of the respondent including the costs of counsel.

9. The trial judge pointed out in paragraphs 28 to 30 of her judgment that according to the Application Form and the pages attached to it, the Applicant repeatedly said that her employer was Hing Wah; that the affirmation submitted by her failed to show that the respondent was her employer; and that the notice of termination of employment issued to the applicant dated 25 July 1998 was also issued by Hing Wah.The trial judge also pointed out (in paragraphs 30 and 31) that the applicant’s assertion that since the notice of termination of employment and all the documents were signed by the respondent, the respondent had to be the employer could not stand.

10. Furthermore, the trial judge stated in paragraphs 32 and 34 of her judgment that the applicant had not accounted for why she filed her claim after the limitation period stipulated in the ordinance. The trial judge also held (in paragraphs 39 to 40) that though the applicant knew about the injury on her cervical vertebrae back in 1997, her explanations on why she only filed her claim17 years later, i.e. she was not clear about law and only when her injury got more serious, she applied for Legal Aid after consulting a District Councillor, were very weak and far-fetched, and they did not constitute a reasonable excuse.

11. The trial judge also stated (in paragraphs 41 and 42) that allowing the applicant to file her claim out of time would be unfair to the respondent and that the applicant’s claim against the respondent had no merit and prospect of success.

12. The applicant lodged this appeal on 17 February 2015.

Application for adducing fresh evidence

13. The applicant issued two summonses respectively on 6 and 21 July 2015 applying to adduce fresh documentary evidence on appeal.

14. There well settled legal principles are that the Court of Appeal will only allow fresh evidence to be adduced on appeal if the applicant satisfies the following three conditions:

(1)  The fresh evidence could not have been obtained with reasonable diligence on the part of the applicant for use at the trial;

(2)  The evidence, if given, would probably have an important influence on the result of the case, though it need not be decisive; and

(3)  The evidence must be apparently credible, though it need not be incontrovertible.

(Ladd v Marshall [1954] 1 WLR 1489 at 1491)

15. The applicant’s application by way of summons dated 6 July 2015 involved 14 documents, including the medical report(s) of the applicant’s treatment in Zhongshan and documentary proof and medical record(s) of her treatment in Hong Kong, among which items 1 to 11 obviously do not satisfy condition (1) as they all predated the hearing on 21 January 2015. The applicant failed to explain why she did not or could not produce these documents prior to the hearing before the trial judge. As for the remaining documents which are items 12 to 14, they concern the medical record(s) and follow-up consultation slip(s) of the applicant on 8 February and 15 March 2015. Their contents have no relevance to the issues of the appeal (i.e. subject of the proceedings and limitation period), therefore they fail to satisfy condition (2).

16. Regarding the application by way of summons dated 21 July 2015, the fresh evidence involved is the summons applying for varying the costs order nisi and the supporting affirmation with annexes and the application for staying the judgment and dismissing the summons for varying the costs order nisi and the supporting affirmation with annexes in the case of DCEC 2023/2014. The annexes of these affirmations include the proof of work of the applicant since leaving Hing Wah, which clearly do not satisfy condition (1) for adducing fresh evidence on appeal since they already existed prior to the hearing on 21 January 2015 before the trial judge and the Applicant also failed to explain as to why they were not produced in the hearing before the trial judge. Regarding the two affirmations, their contents have no relevance to the issues of the appeal, and so they do not satisfy condition (2) for adducing fresh evidence on appeal.

17. For the reasons set out above, we refuse the applicant’s two applications by way of summons.

The grounds of appeal of the applicant

18. The applicant stated in her grounds of appeal set out in the notice of appeal that the trial judge had not allowed her to explain in details on why no claim had been filed between 1997 and 2014. The skeleton argument and submission of the applicant also suggested that the word employer（僱主）in Chinese “jargon” referred to the boss, an entity or individual who employed the employee (worker/勞工).

Reasons for the decision of this court

19. It cannot be disputed that the applicant filed her claim outside the 24 months’ limitation period stipulated in the ordinance. As the trial judge pointed out (in paragraph 16 of the judgment), pursuant to Section 14(4) of the Employees’ Compensation Ordinance, the court may entertain her application for compensation if the applicant can provide reasonable excuse for her delay. Having considered the Application Form, the affirmations she filed and her submissions, all that the applicant said was that she had suffered from poor health during these years and she was ignorant of law. However, the applicant did not specify the connection between her illness and her failure to apply for compensation during the lengthy period of 17 years. Yet since 1997, the applicant has already opined that the computer desk and seat for her work were substandard and has known that her cervical vertebrae were injured, so her ignorance of the limitation period cannot constitute a reasonable excuse.

20. Since the applicant’s delay is as long as 17 years, which is extremely serious delay, she needs to prove that her application for compensation has a very strong prospect of success. See Tsang Lai Fat v Sun Fook Harbour（literal translation of 曾來發訴新福港）[2011] 4 HKLR 336, 339. As the following discussion of this Court indicates (see paragraphs 22 and 23), the applicant’s application for compensation has no prospect of success.

21. Under such circumstances, the applicant cannot rely on Section 14(4) to overcome her problem of having made her application after the expiry of the limitation period.

22. As for the issue of the subject of the proceedings, the applicant’s position was that although she was employed by Hing Wah at the relevant time, since the respondent was the boss and person in charge and he signed the company’s documents, so the respondent was the employer. However, Hing Wah is a limited company and the well-settled principles of company law are that limited companies and their shareholders and directors are separate entities and they are different legal persons. Despite the fact that the respondent was the shareholder and director of Hing Wah, he personally would not bear the liability of the company and there was also no employment relationship between him and Hing Wah’s employee.

23. Looking at the evidence of this case, it was obvious that the applicant was employed by Hing Wah between 1988 and 1998 and no employment relationship existed between the respondent personally and her. It is wrong for the applicant to bring an application for compensation against the respondent. On this point alone, this Application Form must be struck out.

24. Based on the above analysis and reasons, we find the judgment of the trial judge correct and flawless. We dismiss the appeal.

25. Applying the normal rule of litigation, since the applicant failed in her appeal, she shall pay the costs of the respondent. Therefore, we order the applicant to pay the costs of the respondent in this appeal, to be taxed if not agreed.