MAN PAK CHI v. SECRETARY FOR JUSTICE for and on behalf of IMMIGRATION DEPARTMENT

DCEC 1306/2017

[2018] HKDC 1402

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’S COMPENSATION CASE No. 1306 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application of Madam Man for leave to extend time, under section 14 (4) of the Employees’ Compensation Ordinance, Cap. 282 (“the Ordinance”), to make an application outside the 24-month period (“the Application”) on the basis that there was reasonable excuse for the failure to make such an application. The alleged accident took place on 14 August 2014 whereas the Application was issued on 9 June 2017.

2.  In his skeleton submissions, Mr Wong, counsel for Madam Man, addresses this court at great length on her application for compensation under sections 9, 10 and 10A under the Ordinance and an extension of periodic payments under section 10(5). These applications are clearly outside the ambit of the present application in light of the consent order made by DCDJ Ko dated 26 April 2018. I should ignore these submissions and deal with the application for leave to make the Application out of time. Mr Wong and Ms Ong, for the Immigration Department (“the Department”) agree to this course.

The Application

3.  By way of a brief introduction of the Application, Madam Man was aged 28 at the time of the accident. She was then an immigration officer on probation in the employment of the Department. Her allegations about the accident are as follow.

4.  Madam Man was on duty and deployed to Arrival Hall, Chap Lap Kok Airport on 14 August 2014. At around 11:50 a.m., she was referred and called down for duty. When she stepped out, she missed a step and fell down. Whilst she instinctively used her right hand to hold onto the handrail of the staircase, her right forearm violently hit the handrail and as a result her forearm was injured. There was no bone fracture but Madam Man felt, and still feel allegedly, numbness in her right forearm. 

Governing principles

5.  Ms Ong helpfully refers this court to the decision of the Court of Appeal in Tsang Loi Fat v Sun Fook Kong [2011]4 HKLRD344. There, Cheung JA provided the guiding principles as to how the discretion of this court should be exercised under section 14 (4) of the Ordinance as follows.

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

1)  The age, education level, intelligence and background of the Applicant;

2)  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;

3)  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

4)  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.

12.  The abovementioned is not meant to be an exhaustive list. This Court only sets out some relatively common factors here, whether the Court would grant an extension of time depends on the facts of each case.”

6.  With these principles in mind, I now turn to the evidence of the parties in respect of the present application.

The present application

7.  In her supporting affirmation, Madam Man gives a detailed account of the accident and the development subsequent thereto. It is remarkable that her appointment was actually confirmed by the Department on permanent terms effect from February 2015.

8.  After the accident, Madam Man has been troubled by the numbness of her right hand and fingers. In April 2016, in order to avoid using her right hand repeatedly in the course of her work, she requested for a change of her post. However, the Department assigned her to handle online applications which required her to click the mouse several thousand times a day. She then developed depressive feelings against her supervisors and she lodged complaints to the Equal Opportunities Commission.

9.  In July 2016, she again made an application to the Department for a special transfer. As a result, she was assigned to the China Port Terminal and did not have to use her right hand repeatedly.

10.  Madam Man now still complains about the pain and numbness of her right forearm. She can no longer do well in printing and design works and she feels inferior and finds no meaning in life allegedly. Due to the numbness, she cannot sleep well and this affects adversely her emotion.

11.  On the other hand, Madam Man gives an elaborated account of her applications for sick leave on injury on duty (“IOD”). She complains that the Labour Department never asked her to produce the complete set of medical certificates for the purpose of the assessment of sick leave on IOD in the Certificate of Assessment, Certificate of Compensation Assessment or the Certificate of Review of Assessment. Despite the Form 7 dated 7 August 2015, the Department did not provide her medical certificates to the Labour Department for clarification. I do not think it is necessary to delve into the disputes concerning the submission of the sick leave certificates to the Labour Department here.

12.  The delay in making the Application is almost 10 months and in my view is substantial. On the evidence of Madam Man, I am simply unable to discern any reasonable excuse for the delay.

13.  Madam Man is a university graduate with an arts degree from the University of Hong Kong. From day one, she has complained about the numbness of her right hand. Her alleged mental issues only surfaced in early 2017, after the expiry of the prescribed period for making the Application.

14.  During the prescribed period, both Form 7 and Form 9 were issued. Madam Man played her role before the Employees’ Compensation (Ordinary Assessment) Board (“OAB”) issued these forms in spite of her failure to attend certain interviews with OAB. She was all along aware of her entitlement to employees’ compensation. There is no reason why Madam Man was unable to make her Application during the prescribed period.

15.  On the other hand, Madam Man was alive to her rights and made requests to her employer for reassignment of her duties so as to avoid using her right hand repeatedly. She also invoked her legal right to lodge a complaint to the Equal Opportunities Commission. There is no reason why Madam Man did not put in her Application within the prescribed period despite her lack of legal representation.

16.  There is no allegation that Madam Man was prevented by her injury from making the Application during the prescribed period. Indeed, the Department saw fit to confirm her employment in the course of the prescribed period.

17.  Mr Wong highlights to this court the evidence of Madam Man relating to her dissatisfaction with the assessment in the Form 9. She alleges that when she raised this matter with the personnel section of the Department on 26 April 2016, she was advised that she could engage a lawyer to raise objection to the Form 9 to the court. She asked the personnel section to deal with this matter internally and she was never advised that she had to submit the medical certificates to the Labour Department for assessment. She asserts that it was a misrepresentation and negligence on the part of the Department. She further alleges that the staff member of the Department told her over the phone that he would follow up this matter with his superior. Thereafter, she was repeatedly advised that the matter was being handled by the Department. Hence, Madam Man believed that it was only an internal matter and decided not to hire a lawyer.

18.  On such evidence, Mr Wong submits that the Department misinterpreted certain circulars and the Civil Service Regulation concerning sick leaves and he further submits that Madam Man’s failure to make the Application in time was induced by the Department.

19.  The Department denies any such exchange between Madam Man and the Department over the phone. I have difficulties in resolving this conflict on affirmations.

20.  The Department indeed issue a reminder to Madam Man dated 26 April 2016 concerning the Form 9. Madam Man was requested to advise the Department in writing whether she would appeal against the assessment therein to the court. She was advised that if she had no objection to the assessment, the Department would proceed to compute and arrange compensation payable under the Ordinance. Madam Man agrees that she received the reminder.

21.  The Department made enquiries with the Labour Department about the assessment of Madam Man subsequently. It was informed that Madam Man raised objection to the Form 7 (and not the Form 9) on 19 August 2015 in person only.

22.  Even if, for the purpose of this application, I accept in total the allegation of Madam Man about what the Department had told her over the phone, I am not convinced that her inaction was due to any inducement of the Department as alleged.

23.  In the first place, the Department never asks Madam Man to withhold any legal action. Indeed, she was expressly advised to seek legal assistance to appeal against the Form 9 within time to the court. I cannot accept that the Department ever rendered it difficult let alone impossible for her to lodge such an appeal within time.

24.  In any event, Madam Man could still appeal against the Form 9 out of time in the course of the Application if she applies successfully an extension of time pursuant to section 18(2) of the Ordinance.

25.  I fail to see how Madam Man was rendered unable to make the Application within time notwithstanding her disagreement with the assessment in the Form 9. She could have made the Application first leaving behind her objection to the Form 9 to be resolved at a later stage. Nor can I believe that she was ever induced to believe that the Department would handle her claim as an internal matter and her Application was hence unnecessary, particularly given her objection to the assessment of the Form 7.  

26.  To conclude, this court is not persuaded that there was any reasonable excuse for Madam Man’s failure to make the Application within time. I do not find this an appropriate case to exercise my discretion under section 14(4) of the Ordinance.

Conclusion and order

27.  For the reasons given above, Madam Man has failed to convince this court why discretion should be exercised in her favour to allow her to make the Application out of time. The present application must be dismissed.

28.  Costs should follow the event. I now make a costs order nisi that Madam Man should pay the Secretary for Justice costs of and occasioned by the present application, to be taxed if not agreed.

29.  Lastly, I thank Mr Wong and Ms Ong for their helpful assistance rendered to this court.