CHOY WAI CHUNG v. CHUN WO CONSTRUCTION AND ENGINEERING CO. LTD.

CACV 14/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 14 OF 2000

(ON APPEAL FROM DCEC 332 OF 1998)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 29 November 2000 this court, differently constituted, handed down judgment in an appeal and cross appeal from the decision of Judge Muttrie in a claim under the Employees' Compensation Ordinance, Cap. 282. This court found in favour of the employee on his cross appeal, which cross appeal was limited to the exercise of the judge's discretion under section 10(5) of that Ordinance, and we ordered that the period of entitlement for periodical payments for temporary incapacity be extended from two to three years.

2. The employer now seeks leave to appeal to the Court of Final Appeal pursuant to the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484. The premise upon which the application is made is the contention that the court held that the judge's discretion under section 10(5) was fettered by the mandatory provisions of section 10(2) of the Ordinance; in other words, that this court was saying that if sick leave certificates were granted beyond the two year period a judge was bound to extend the period of entitlement to periodical payments accordingly, and the assertion is made by the employer that section 10(5) limits the judge's discretion to extend the periodical payments period so that he may do so in only one circumstance, namely, where it is not known at the end of the two year period whether the loss of earnings will be permanent.

3. The question of great general and public importance which is said to arise is:

"the extent to which the trial judge's discretion under section 10(5) is fettered by the provisions of section 10(2) of the Employee's Compensation Ordinance."

4. In our judgment, the question posed does not arise. It misses the essence of the judgment of this court and misconstrues the effect of the comments made by Rogers V-P about section 10(2). The court did not hold that the issue of certificates beyond the two-year period of itself inevitably requires eligibility for periodical payments to be extended. The cross appeal was allowed because of the limitation which the judge imposed upon the discretion conferred by section 10(5). The judge had proceeded on the basis that he could extend the two year period in only one circumstance, and we decided that that was a fetter on discretion not to be found either expressly or by necessary implication in that section. The extension of the period was one which we thought fair "in all the circumstances" and "taking into account" the medical certificates (see judgment at page 6O-Q).

5. Accordingly, since the premise for the question, which we are asked to say is one of great general and public importance, is a premise which is misplaced, we decline to grant leave for the purpose of that question.

6. That is, however, not the end of the matter, for there remains the contention, albeit not specifically framed in the Notice of Motion as the question of great importance, that the power under section 10(5) is limited to the one factual situation where it is not yet known whether there will be permanent incapacity. We accept that the proper construction of section 10(5) affects a significant number of cases in which compensation is sought under section 10 and might properly be described as one of great general and public importance. That then moves us to consider whether this is an instance in which the discretion under section 22(1)(b) of the Court of Final Appeal Ordinance should be exercised in favour of leave. We think not, for it seems to us that there is nothing at all in section 10(5) which, properly construed, could possibly dictate or permit the very specific and highly limiting fetter on the discretion for which the employer contends.

7. Finally, it is said in the Notice of Motion that this court, when deciding to extend the period under section 10(5), failed to give sufficient weight to certain conflicting evidence. That is a matter peculiar to this particular case, and cannot be said to involve a question of great general and public importance, and does not, therefore, form a proper basis for the grant of leave.

8. For these reasons, we refuse the application for leave.