FONG CHO YIN v. NG KA SENG trading as LITTLE SHOP

DCEC 1940/2025

[2026] HKDC 1465

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1940 OF 2025

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION

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Background

1.  The Applicant Fong Cho Yin (方祖賢) (“A”) was allegedly injured in the course of work on 4 November 2022 (“Accident”) when she hit her right shoulder against a wall and the outer frame of a jewellery cabinet in the course of walking towards a customer in a shop.

2.  She commenced this action on 8 September 2025 by filing the Application (“EC Application”) and sues her employer as the Respondent (“R”) for employees’ compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

3.  The EC Application was issued about 10 months out of time after the 2-year limitation period prescribed under s14 of the ECO had expired on 3 November 2024.

A’s Summons

4.  A filed a summons on 19 March 2026 (“A’s Summons”) applying for leave to proceed this action/the EC Application against R out of time under s14(4) ECO.

5.  R opposes A’s Summons and seeks to dismiss A’s action herein.

Affirmations filed

6.  I have considered the following affirmations filed by the parties in support/opposition of A’s Summons:

(1)  Affirmation in support of A filed on 19 March 2026 (“A’s Affm 1”);

(2)  Affirmation of Ng Ka Seng (“Ng”) in opposition filed on behalf of R on 11 June 2026 (“R’s Affm”); and

(3)  Affirmation in reply of A filed on 9 July 2026 (“A’s Affm 2”).

Issue before this Court

7.  The only issue before this Court is whether A has demonstrated reasonable excuse for the delay under s14(4) ECO such that leave should be granted for her to proceed this action for employees’ compensation out of time.

Legal Principles

8.  S14(1) of the ECO provides that proceedings for the recovery of compensation for work injury shall not be maintainable unless (i) notice of the accident has been given to the employer as soon as practicable; and (ii) an application for employees’ compensation has been made within 24 months from the occurrence of the accident that caused his injuries.

9.  S14(4) provides that the court may, despite lateness, receive and determine the application if it is satisfied that there was “reasonable excuse” for the applicant’s failure in making the application within the time required.

10.  In considering whether there was “reasonable excuse” for the lateness, the court has an unfettered discretion, which should be exercised liberally (see Chan Siu Ling v Tonyear Investment Ltd [1999] 2 HKC 348 at §23).

11.  I have borne in mind the important guidelines laid down by the Court of Appeal, and referred to by both parties herein, in Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 at §§10-12 in considering what constitutes “reasonable excuse” within the meaning of s14(4).

12.  The factors to be considered include (i) the reason for the delay; (ii) the length of the delay; (iii) whether there is sufficient ground to support an award of employees’ compensation to the applicant/merits of the claim; and (iv) whether the intended respondent will suffer any prejudice if an extension of time is granted by the court for it to be sued at this stage of the proceedings.

13.  In considering the reason for the delay, the Court of Appeal has set out a non-exhaustive list of factors at §11 as follows:

“11. In considering the reason for the delay, the Court has to take into account the following factors:

(a) The age, education level, intelligence and background of the applicant;

(b) Generally speaking, Applicant’s ignorance of the law is not a reasonable excuse for the delay. On the contrary, if the Applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the Applicant has failed to provide a reasonable explanation for the delay;

(c) The health condition of the Applicant, whether he was fully aware of the extent of his injury before the expiry of the prescribed period for the claim; or whether his failure to make the claim before the expiry of the prescribed period is because of his illness; and

(d) Whether the Applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.”

[emphasis added]

14.  The burden is on the applicant to prove the existence of “reasonable excuse” with credible evidence, as stated in Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55 at §57:-

“The Employees’ Compensation Ordinance is, in a sense, penal in nature. The employer is made liable to pay compensation in respect of an accident through no fault of his and for which he has done no wrong. It is important to bear firmly in mind that s14 of the Ordinance constitutes a statutory protection for the employer; a protection which he ought not to be deprived unless all the circumstances warrant the conclusion that a reasonable excuse for not complying with the Ordinance has been proved to exist.”

15.  I have also referred to the often-cited passage of HH Judge Charles in Wong Man Tak v Shaws & Sons Limited [1957] HKDCLR 85 at pp 88-89 as to the meaning of “reasonable excuse”:

“A reasonable excuse, in the ordinary sense of the phrase, means, in relation to a failure by an applicant to make his application for compensation within the prescribed period, that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused… The numerous authorities upon that phrase show that a cause for failure to make a claim within the prescribed period was reasonable, and therefore excused the failure, if it were:- a reasonable belief on the part of the applicant that his injury was trivial; or a mistaken diagnosis of his injury; or a belief in the applicant that a claim for compensation was unnecessary, when the belief had been induced by the employer in such circumstances as reasonably warranted it; or the inability of the applicant to transact business because of his injury. On the other hand, a cause was not reasonable if it were a belief by the applicant that it would be to his interest to defer or not to make a claim. Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period: he had to have reasonable causes for the whole period. Thus, while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure were due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

[emphasis added]

16.  In gist, the employee’s delay due to unreasonable conduct or an unreasonable decision on his part will not be excused.

17.  In Hong Chun Tak v Yip Kan Kee Contracting Co Ltd & Anor [2018] 2 HKLRD 360, HH Judge Levy applied the above principles and on the facts of that case found that the applicant has provided a reasonable excuse in accordance with s14(4). Coupled with the factor that his claim against the intended respondent was not bound to fail, there being sufficient evidence that the latter might be liable to the applicant, leave for joinder was granted out of time.

18.  Bearing in mind the above legal principles, I now turn to the facts of this case.

Undisputed Facts

19.  The following facts are not in dispute:

(1)  A was aged 29 at the time of the Accident and was employed by R to work as a salesperson;

(2)  Upon report by A of the Accident, R submitted a Form 2 Notice to report the Accident to the Labour Department on 16 January 2023;

(3)  R had made continuous periodical payments (totalling in excess of $230,000) to A upon the latter’s submission of sick leave certificates after the Accident from December 2022 until August 2024;

(4)  After R had stopped paying her periodical payments, A was granted further sick leaves for a further year up to end-2025; and

(5)  A was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 26 November 2025. A Certificate of Assessment/Form 7 was issued on 10 December 2025 (“Form 7”), certifying 3.4% permanent loss of earning capacity (“LEC”) in respect of “right shoulder injury resulting in right shoulder pain, stiffness and weakness; psychiatric impairment”, with certified (intermittent) periods of absence from duty during the 3-year period from 21 November 2022 to 20 November 2025.

20.  A accepts the assessments set out in the Form 7.

A’s Explanations for the Delay

A’s Medical Conditions

21.  A’s right shoulder pain, initially not serious, had aggravated gradually. She reported the Accident to her supervisor/boss (Ng) by telephone on 21 November 2022[1] – Ng does not deny that A had called him to apply for sick leaves covering the period 21-26 November 2022 (due to pain suffered from a previous injury), but says that A had only first reported the Accident to him by telephone some time in December 2022.[2]

22.  Medical evidence shows that when consulting Dr Lau Sun Wing Cary on 21 November 2022, A reported “fall with contusion injury to right upper limb on 4/11/2022”.[3]

23.  Sick leave certificates were issued to A covering a period from 21 November 2022 to 12 December 2025 in respect of diagnoses of right shoulder injury / chest wall injury / right clavicle and sternoclavicular joint pain / hand pain.[4]

24.  Private MRI conducted on 5 January 2023 of the right sternoclavicular joint shows mild osteophytosis of the medial end of clavicle and partial tear of the supraspinatus tendon.[5]

25.  A has since May 2023 suffered from persistent depression and anxiety due to unresolved right shoulder pain. She became suicidal and had made (unsuccessful) suicide attempts. She has been attending psychiatric treatment and clinical psychology services. Dr Lam Ho Bun comments that “… due to persistent pain, it is expected that her depressive illness would run a chronic and fluctuating course that may impair her vocational capacity”.[6] Due to her mental condition and depression, she could not apply for Legal Aid or conduct her claim for compensation.[7]

Belief that Employer would Pay Compensation

26.  A had believed in the initial 2 years that R, by (i) submitting the Form 2 Notice to the Labour Department on 16 January 2023 setting out the circumstances of the Accident as reported by A; and (ii) continuously paying her periodical payments upon the sick leave certificates submitted up to August 2024, had accepted employer’s liability to pay her compensation in respect of the Accident hence it was not necessary for her to lodge a court action.

27.  She had mistakenly believed that upon the conclusion of the Form 7 assessment (which did not take place until 26 November 2025), R would settle all compensation to which she was entitled in respect of the Accident.

28.  A’s belief was reinforced by a letter dated 29 December 2023 from the Labour Department to R (copied to her) stating that R had earlier admitted liability to pay A employees’ compensation.[8]

29.  A was confused when she received a subsequent letter from the Labour Department dated 25 October 2024[9] which states that A and R “had disputes about the case”. She called Ng thereafter to enquire the matter. Ng replied to her that R did not deny the injury at work, otherwise it would not have submitted the Form 2 Notice to report the Accident to the Labour Department.

30.  It is noteworthy that Ng does not deny that A had called him for clarification regarding R’s admission of employer’s liability to pay employees’ compensation upon the Labour Department’s letter dated 25 October 2024.[10]

31.  A subsequently received another letter dated 26 June 2025 from the Labour Department[11] which states that R “does not admit liability to pay employees’ compensation” in respect of the Accident. It further states that any application for employees’ compensation in case of disputes must be lodged with the court for adjudication within 24 months from the date of the accident.

32.  Upon receipt of this last letter, A approached the Legal Aid Department for assistance promptly and applied for Legal Aid. The Legal Aid Certificate was issued on 28 August 2025, and received by A’s solicitors on 3 September 2025. The EC Application was issued on 8 September 2025.

R’s Arguments

33.  R points out that the Form 7, of which assessments A accepts, reveals very mild orthopaedic and psychiatric injuries in the respective LEC of 1.4% and 2%. Such mild incapacity should in R’s argument not impair A’s ability of communication or incapacitate her from instructing legal representatives to commence the court action within the 2-year limitation period.

34.  R argues that as he had stopped making periodical payments to A after August 2024, A should have taken prompt action to commence court action to seek employees’ compensation upon receiving the Labour Department’s letter dated 25 October 2024 which states that the parties had disputes. Yet she chose to turn a blind eye and sat on her rights for almost another year until she filed the EC Application on 8 September 2025.

35.  R also argues that he would be prejudiced in the event that leave is granted for A to proceed the action out of time due to (a) lapse of memory of witnesses; and (b) difficulty in gathering evidence.

Discussion

Reasonable Excuse

36.  A has adduced evidence to explain/in support of (i) deterioration of her mental conditions and continuously seeking treatment of her orthopaedic and psychiatric injuries in the initial 1 to 2 years after the Accident; (ii) her incapacity due mainly to her mental conditions (evincing suicidal ideations) in seeking legal advice and commencing court action to claim employees’ compensation in respect of the Accident; and (iii) her belief (induced by R) that a court action would not be necessary as R had been making continuous periodical payments to her up to August 2024 and indicated admission of liability as stated in the Labour Department’s letter dated 29 December 2023.

37.  The Labour Department’s first 2 letters dated 29 December 2023 and 25 October 2024 make no mention of the 24-month limitation period in commencing court action. The only evidence showing that A had been advised of and should have knowledge of the time-bar matter is found in the Labour Department’s letter dated 26 June 2025, not earlier. A had taken prompt action thereafter to seek assistance from the Director of Legal Aid and commence the action herein.

38.  On such evidence, I do not consider it could be said properly, as argued by R, that A has been sleeping on her rights, such that the delayed EC Application should be dismissed and A be disentitled to her claim for employees’ compensation in respect of the Accident.

39.  Considering all evidence in applying the tests set out in Tsang Loi Fat (supra), I am inclined that A has shown reasonable excuse for the delay in not issuing the EC Application within the 2-year time limitation period expiring on 3 November 2024.

Prejudice

40.  R argues that allowing A to proceed this action out of time against R would cause substantial prejudice to him due to loss of memory of witnesses and difficulty in gathering material evidence involving, eg conversations between A and R in the lengthy post-Accident period.

41.  I do not accept that substantial prejudice will be caused to R due to the delay of 10 months in A commencing these proceedings. R has all along had knowledge of the Accident and has been paying periodical payments for almost 2 years until August 2024 upon A’s submission of sick leave certificates most of which were issued on account of right shoulder injuries allegedly sustained by A in the Accident.

42.  R could have had ample time to investigate the Accident since he had reported details of the same to the Labour Department in the Form 2 Notice by as early as 16 January 2023.

43.  I also doubt the parties’ or witnesses’ memory of post-Accident conversations or dealings, as suggested by R, would have any important bearing on the outcome of the case under the no-fault scheme of the ECO. The principles stated in Lam Chi Keung v Yu Vat Development Ltd [2018] HKDC 165 referred to by R do not support in the present case R’s opposition to A’s Summons.

44.  Rather, by refusing leave to maintain this action due to the 10-month delay thereby disentitling A to employees’ compensation under the ECO, substantial prejudice will be caused to A.

Merits

45.  There seems to be no denial of the Accident by R who did initially admit liability (as mentioned in the Labour Department’s letter to R dated 29 December 2023) and pay A almost 2 years of periodical payments under section 10 of the ECO, though R is not debarred from denying liability which may remain a live issue in the action.

46.  A’s claim for employees’ compensation is not bound to fail but, on the contrary, has merits.

47.  I found on the present evidence that there are sufficient grounds to support the EC Application, and A should not be disallowed to proceed due solely to the 10-month delay.

Conclusion

48.  I find that A has satisfied the requirement of a reasonable excuse under s14(4) of the ECO. In the interest of justice, A’s Summons ought to be allowed.

Costs

49.  As to costs, as A is seeking the indulgence of the court but R has unsuccessfully contested A’s Summons, it would be reasonable to exercise my discretion to order costs of A’s Summons be in the cause, as sought by A.

Order

50.  I therefore make the following Order:

(1)  Leave be granted to A to proceed the EC Application against R out of time;

(2)  Costs of A’s Summons be in the cause; and

(3)  A’s own costs be taxed in accordance with the Legal Aid Regulations.

51.  The above costs order stated in §50(2) is nisi. In the absence of application from any party to vary the costs order within 14 days by written submissions, the costs order nisi shall become absolute.