WONG KI v. WONG TUNG SING

DCEC74/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 74 OF 2008

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D E C I S I O N

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1.  This is the Applicant’s application for leave under section 14(4) of the Employees’ Compensation Ordinance to claim for employee’s compensation out of time.  The issue is whether there is a reasonable excuse for the failure on his part to give notice or to make an application as referred to under section 14.

2.  The accident giving rise to the present proceedings took place on 13 August 2005.  As a result of the accident, the Applicant’s left eye was injured.  He was assigned to work at the place where the accident occurred.  For this accident, the Applicant took out an action, namely DCEC835/2007, against the Respondents, which include Shun Tak Electrical, Mechanical and Air-conditioning Engineering (Hong Kong) Limited (hereinafter referred to as “Shun Tak”), of which the Respondent is the sole shareholder and director.  The Applicant discontinued the claim against Shun Tak in January, 2008.  The remaining Respondents are Madam Chan Lai Kun (who formerly traded as Moon Shing Engineering Co.) and the Bank of China Group Insurance Company Limited.

3.  Shun Tak paid the Applicant payments by way of three cheques in the sums of $7,000, $3,500 and $7,000, dated 11, 13 and 12 September 2006, respectively.  In his affirmation, the Respondent said:

“31.  In fact, the reason why I issued the three cheques to the Applicant was that at the relevant time, my wife and I knew that Applicant and his family had some financial problem after the alleged accident.  Since the Applicant was the husband of my wife’s elder sister, I thus advanced some interest-free loans to the Applicant out of amity.  These cheques however did not reflect the monthly earnings of the Applicant when he worked for me as a casual worker.”

4.  If the Respondent had intended to help the Applicant financially, he should have issued the three cheques in his own name and, not the cheques of Shun Tak.  There is no evidence that the Applicant asked him for loans, and there is no evidence that he told the Applicant that the three cheques were meant for loans to the Applicant out of amity.  So the three cheques appear to be simply payments made by Shun Tak.  This is a very strong piece of evidence that gives the impression that Shun Tak was the employer of the Applicant because if it were not his employer, it would not make the payments.  This is a reasonable inference of fact to be drawn on the available evidence.  So it is simply reasonable for the Applicant to have sued Shun Tak in DCEC835/2007.

5.  Legal aid was granted to the Applicant in May 2007.  He was then interviewed by Mr Leung of the solicitors assigned by the Director of Legal Aid to act on his behalf.  Mr Leung made inquiries inter alia about Shun Tak.  The correspondence between the parties does not reveal that the incorporation of Shun Tak would be an issue in the matter of claim.

6.  Shortly before the expiry of the limitation period, the Applicant commenced DCEC835/2007 against Shun Tak and Madam Chan.  In its defence, Shun Tak did not plead that it was not liable for the Applicant’s injuries when the accident occurred because at that material time it had not been incorporated, and so it was not in existence.

7.  On 2 January 2008 when Shun Tak filed the Respondent’s statement, it was revealed for the first time that it had not been incorporated at the time of the accident.  The limitation period regarding the Applicant’s claim had already expired on 13 August 2007.  It was only on 2 January 2008 that the Applicant was alerted to the issue of the incorporation of Shun Tak which was incorporated on 12 September 2005.  Then the Applicant instituted the present claim against the Respondent on 16 January 2008. 

8.  The Respondent accused the Applicant of not having done a company search to investigate the background of Shun Tak, including the performance of a company search of Shun Tak.  The Applicant’s solicitors merely obtained the latest annual return of Shun Tak which showed that the Respondent was the sole director and shareholder of the company.  If they had done so, it would have revealed clearly the history of the incorporation of Shun Tak.

9.  Further, Shun Tak had disclosed to the Applicant a list of documents on 20 September 2007.  In that list of documents, the date of the date of the incorporation of Shun Tak was clearly disclosed to the Applicant.  Therefore, the Applicant’s solicitors had failed to exercise due diligence in order to ascertain whether Shun Tak was the proper party to be sued.  But this took place after the limitation period had already expired.  The question is when DCEC835/2007 was instituted was it reasonable to sue Shun Tak?  The answer is obviously “yes”.  The three cheques form a strong piece of evidence that it was the employer of the Applicant at the material time.

10.  When is it that it became clear that Shun Tak should not be a party to DCEC835/2007?  According to the Applicant, it is in early January 2008 when Shun Tak filed the Respondent’s witness statement that the issue of the incorporation of Shun Tak became an important issue in the case.  Although the Applicant should have been aware of the incorporation date of Shun Tak, on 20 September 2007 when Shun Tak filed and served its list of documents, that would not have made any major difference insofar as the position of the Applicant is concerned because, by that time, the limitation period had expired and if the Applicant wanted to pursue the claim relating to injury against the Respondent, he had to ask for leave out of time under section 14(4) of the Employees’ Compensation Ordinance.

11.  The Applicant was actively pursuing his rights.  The issue relating to the inception of Shun Tak only unfolded itself after the limitation period had expired.  This is a reasonable excuse under section 14(4) of the Employees’ Compensation Ordinance.  I have no hesitation to grant the application for leave sought by the Applicant.

(Discussion re costs)

12.  Costs of this application be costs in the cause.  The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.