TING KWOK KEUNG v. TAM DICK YUEN t/a TAM DICK YUEN ENGINEERING AND OTHERS

CACV 751/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 751 OF 2000

(ON APPEAL FROM DCEC 382 OF 1998)

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REASONS FOR DECISION

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Hon Mayo VP (giving the Reasons for Decision of the Court) :

1. This is a Notice of Motion whereby the applicant seeks leave pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance， Cap.484 to appeal against the judgment of this court which set aside the judgment of Deputy Judge Lok in the District Court.

2. It is not contended that there is any question arising out of the appeal which is of great general or public importance.

3. What is being relied upon is the provision in the subsection that the appeal should "otherwise be submitted to the Court of Final Appeal for decision".

4. The claim which was before Deputy Judge Lok was a claim by an employee for compensation under the Employees' Compensation Ordinance, Cap.282. The total amount of the award was HK$980,469. This amount was awarded in respect of injuries sustained by the applicant during the course of his employment.

5. The main issue which was contested before the Judge was whether the applicant was an employee or whether as contended by the respondents he was a sub-contractor.

6. For the reasons given in its judgment the Court of Appeal (Mayo VP, Wong & Stock JJA) reversed the decision of the Judge. It will be appreciated that this necessitated the Court of Appeal interferring with the findings of fact which were made by the Judge.

7. Mr Bleach SC in an able submission accepted that the Court had correctly identified the principles which applied in a situation of this nature. However, he went on to argue that it was manifest from the judgment of the Court of Appeal that it had not applied the principles which it had propounded, and in particular he took us to passages in the judge's analysis which, he says, were overlooked by this Court, and to evidence which he says has been overlooked or misread; and he further suggests that it was, in any event, not for the Court of Appeal then to make findings in the respondents' favour, rather than remitting the case for a rehearing.

8. It is unnecessary, and is perhaps inappropriate, for us further to rehearse his arguments here or to analyse them in any detail.

9. It suffices to say that his submissions caused the Court considerable disquiet as there may be sufficient reasons to lead it to a conclusion that it has substituted its own view of the evidence which was before the Judge rather than being satisfied that the Judge was plainly wrong which is the correct test.

10. Mr Kotewall SC submitted that the requirements which had to be satisfied before leave could be granted were stringent. He argued on the authority of Hui Shiu Wing v. Cheung Yuk Lin in [1968] HKLR 176 that there needed to be exceptional circumstances to justify the granting of leave to appeal to the Privy Council if the matter in dispute was less than the amount provided for in the legislation and the question involved in the appeal was not one of great general or public importance. The Court of Final Appeal was not intended, he argued, to be the repository of each and every case in which it might be said, even on strong arguable grounds, to have gone wrong. Whatever may be the strength of these contentions, we feel bound to say that this case is, on any view, an unusual case, for this Court has been persuaded to a position of considerable unease at the course it took, and is of the clear view that to deny him recourse to the Court of Final Appeal would be to deny him a good prospect of success and, therefore, an award to which he may very well be fully entitled.

11. It is not a good answer to this to say that if we dismiss the application, it is always open to the applicant to apply to the Court of Final Appeal. If we are of the view that leave should be granted we should grant it.

12. It is in these circumstances that we are of the opinion that the interests of justice require that leave should be given to the applicant to appeal to the Court of Final Appeal.

13. A further factor which we have weighed in the balance is that the Court did not order that there should be a retrial as it was of the opinion that in all the circumstances this would serve no useful purpose. This would appear to constitute a further reason for the matter to be considered further.

14. Finally, there is the fact that the amount of the award made by the Judge was only slightly less than the amount referred to in section 22(1)(a) of the Ordinance. This being the case we should more readily be disposed to grant the leave which is sought.

15. At the conclusion of the application, we advised the parties that we were granting the leave sought and that reasons for this would be given later. These are our reasons. We further ordered that the costs of the application should be costs in the cause of the appeal.