CHOI MEI HO v. LIU YUK WAH and Another

IN THE COURT OF APPEAL

1996, No. 719
(Miscellaneous Proceedings)

-----------------------

H E A D N O T E

-----------------------

When an intending appellant applies to the Court of Appeal for an extension of time in which to lodge his appeal, but his delay has been substantial and inexcusable, there is no prospect of his obtaining such an extension unless he can demonstrate that his chances of success in the appeal are very high indeed ("the relevant principles" stated by Keith, J. in Chiu Sin-chung v. Yu Yan-yan and Another [1993] 1 HKLR 225 (at pp.227, 228), on an application to extend time for an appeal from a master to the judge, adopted and applied to an application to extend time for an appeal to the Court of Appeal).

IN THE COURT OF APPEAL

1996, No. 719
(Miscellaneous Proceedings)

----------------------

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. :

Introduction

1. This is an application for an extension of time in which to lodge an appeal against an order of Her Honour Judge Kwan, made in the District Court in the exercise of that court's jurisdiction under the employees' compensation legislation. The order was made on 10 February 1995, well over a year ago.

The parties

2. The intending appellant is Liu Yuk Wah ("Mr. Liu"). The judge held Mr. Liu liable, as her employer, to one Choi Mei Ho ("Madam Choi") in respect of an industrial accident which occurred on 24 December 1988 at a construction site on which Madam Choi was working. On 17 December 1990, Madam Choi made a claim in respect of the injuries she sustained as a result of that accident. She made that claim, not only against Mr. Liu, but also against Chung Chiu Ying ("Madam Chung") trading as Kin Kee. (Madam Chung was in fact the wife of one Mr. Wong.)

The issue

3. The contest between the parties, at the hearing before the judge, was not a contest as to whether Madam Choi was entitled to recover compensation in respect of her accident. The contest was as to which of them, Mr. Liu or Madam Chung, was to be responsible for paying it.

The proceedings below

4. On 10 February 1995 the judge resolved the issue in favour of Madam Chung and against Mr. Liu. She said in her judgment that she found for Madam Choi against Mr. Liu. She remarked that the quantum of compensation had been agreed in the sum of HK$569,387. She said that the circumstances of the case were unusual. She thought it right to make an order for costs against Madam Chung.

The High Court action

5. On 25 November 1991, between the date of the initiation of Madam Choi's claim in the District Court and its determination by the judge, Madam Choi instituted proceedings in the High Court for damages for personal injury. She sued in those proceedings both Mr. Liu and Madam Chung; and she also sued Mr. Wong and one Chan Kam Ming, the owner of the construction site. This writ was served on Mr. Liu only in November 1992. According to his evidence, Mr. Liu then believed that the writ was something to do with the compensation claim in the District Court. He acknowledged service of the writ, and he was then served with the statement of claim; but he did not put in a defence. On 29 January 1993, judgment in default of defence was obtained against him for damages to be assessed. But he says he was unaware of this judgment; and he says that Madam Choi did not seek to enforce it. (Indeed, on 6 February 1996 this default judgment was, by consent, set aside.) By a notice of hearing dated 5 July 1995, Mr. Liu was notified that the High Court Action would be listed on 25 July 1995 for mention. He then (for the first time in the whole history of the matter) instructed solicitors. However, it does not appear that he instructed them to take any step in the litigation, either in the District Court or in the High Court, on his behalf.

The present application

6. Mr. Liu then instructed new solicitors. In February 1996, he was advised to apply to the Court of Appeal for an extension of time for an appeal against the order of the District Court made on 10 February 1995 (I should add that leave to appeal is not required, having regard to the size of the sum awarded).

The argument in support of this application

7. Counsel for Madam Choi was forced to concede that Mr. Liu's delay in prosecuting the proposed appeal has been both substantial and inexcusable. He submitted that there were degrees of blameworthiness in these matters; but nevertheless he was quite unable to offer any excuse for Mr. Liu's failure timeously to prosecute the appeal in this case.

The principles to be applied

8. Counsel referred me in this connection to the valuable judgment of Keith, J. in Chiu Sin-chung v. Yu Yan-yan & Another [1993] 1 HKLR 225. The judge set out the relevant principles, under the rubric "the relevant principles" at p.227 to 228 of his judgment. I would gratefully accept this statement of the relevant principles, which I need not here repeat. It is clear that, in a case where the delay has been substantial, and no excuse can be made for it, there is really no prospect of the intending appellant obtaining an extension of time in which to appeal unless he can demonstrate that his chances of success in the appeal are very high indeed.

The present case

9. Here, counsel then has to say, and does say, that the merits of Mr. Liu's appeal are so great that he should be given an extension of time notwithstanding Mr. Liu's substantial and inexcusable delay in the prosecution of the appeal. If I were satisfied that, otherwise, a grave miscarriage of justice would be suffered by Mr. Liu, I would feel bound to accept that submission. But is that conclusion in fact forced on me by the strength of Mr. Liu's case?

10. The grounds of appeal which Mr. Liu seeks to advance are set out in his notice of appeal. They amount to this, that at the District Court hearing Mr. Liu had contended that he was not the employer of Madam Choi but that Mr. Wong was; and he says that the judge's finding against him was unjustified on the evidence. But is that so?

11. On 16 July 1991, Mr. Liu had filed, in the District Court action, some further and better particulars of his answer in those proceedings, in which he had accepted that he was at all material times engaged in the construction works and that he was the direct employer of Madam Choi. However, this document was not placed before the judge. It is said that, therefore, I should pay no attention to it. I do not think this is right. It is part of the material which I do have to consider in deciding whether or not the proposed appeal has a very strong chance of success.

12. The judge in coming to her conclusion said that Madam Choi's evidence was to the effect that she was directly employed by Mr. Liu who paid her all along. The judge accepted that evidence, as she was perfectly entitled to do. The judge could only have come to the conclusion to which she did come on the basis that Mr. Liu was the employer of Madam Choi and that Mr. Wong was not. There is no substance in counsel's point that the judge did not consider properly Mr. Liu's position.

13. Mr. Liu now says, and no doubt told the judge, that he was only responsible for supervising the work, in consideration of a salary and a share of profits. The true employer of Madam Choi, he says, was Mr. Wong. But in the face of the evidence to which I have referred given by Madam Choi, and accepted by the judge, and in the face of the damning admissions contained in the particulars of his answer which Mr. Liu gave, it seems to me to be quite impossible to argue that the proposed appeal would have any real prospect of success at all, let alone a very good prospect of success.

Conclusion

In these circumstances, I have no doubt that the right course for me to take, in the interests of justice, is to reject Mr. Liu's application for an extension of time in which to appeal. The other parties to the case have been entitled for a very long time to regard the District Court proceedings as having been finally concluded. Madam Choi has been kept out of her compensation for an inordinate length of time. It ought to be brought home to people that claims of this nature must be diligently prosecuted. This court will require a very strong case indeed before accepting an application by an employer for an extension of time for leave to appeal, months after the judgment against which it is sought to appeal. The respondents' costs of this application must be taxed and paid by Mr. Liu. There will also be an order for a legal aid taxation of Madam Choi's costs.

( G.M. Godfrey )

Justice of Appeal