Ma Po Yuk v. Regent Broad Ltd.

DCEC695/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 695 OF 1999

______________

R U L I N G

______________

1. This is an Application by the Applicant to extend the time limit to appeal against the Certificate of Review Assessment dated 18 January 2000.

2. The background of the present case is this. The Applicant brought the Application herein on 26 August 1999 against the Respondent to claim for employees' compensation in respect of an accident on 13 October 1997. In the Application, the Applicant also lodged an appeal against the assessment made by the Employees' Compensation (Ordinary Assessment) Board under the Certificate dated 2 August 1999.

3. Under the said Certificate, the Applicant was assessed to have suffered a 5% loss of earning capacity. The Applicant was not satisfied with the said assessment and so she applied for review of the assessment under section 16G of the Employees' Compensation Ordinance ("the Ordinance").

4. By a Certificate of Review of Assessment dated 18 January 2000, the initial assessment of 5% loss of earning capacity was affirmed. Unfortunately, the Applicant's solicitors did not take out a summons to amend the Application to include an appeal against the said Certificate of Review of Assessment. The appeal time period of 6 months under section 18 of the Ordinance has lapsed, and the Applicant seeks to make an Application to extend the time limit for the appeal just before the actual hearing of the assessment today.

5. To oppose the Application, Mr Wu for the Respondent relies heavily on the judgment of the Court of Appeal in Ng Ming-cheong v Mass Transit Railway Corporation [1997] HKLRD 1231. In that case, the learned judge, Le Pichon J, as she then was, analysed the statutory provisions in the Employees' Compensation Ordinance in some details, and ruled that a certificate of assessment was to be final unless appealed within a limited period of time. The learned judge also ruled that the trial judge ought not to have entertained any expert evidence in circumstances where the respondent had chosen not to appeal during the 6 months' period or to apply for leave to appeal out of time prior to the hearing.

6. However, with respect to Mr Wu, the Court of Appeal in that particular case was only asked to rule about the legal effect of a certificate of assessment if neither party appeals against the same during the 6 months' period or applies for leave to appeal out of time prior to the hearing. The MTR case does not give any guidance as to how the court should exercise the discretion to extend the time for appeal under section 18 of the Ordinance.

7. So far as I am aware, there is no direct authority on this point. In my judgment, section 18(2) gives a wide discretion to the court. It allows the court, if it thinks fit, to extend the time limit for the appeal against a certificate of assessment. However, such discretion should also be exercised in a judicious and cautious manner.

8. Having seriously considered the facts of this particular case, I am of the view that such discretion should be exercised in favour of the Applicant. Indeed, the Applicant's position has been clear from the outset of the proceeding. She was not satisfied with the initial assessment of 5% loss of earning capacity and so she lodged an appeal against the same. The assessment was affirmed upon review, and so it goes without saying that the Applicant was also dissatisfied with such assessment and sought to challenge the same.

9. In my judgment, the case has all along been proceeded in such manner and the Respondent cannot complain that it was misled in any way. Indeed, the Respondent's solicitors, after the expiry of the 6 months' appeal period, filed a hearsay notice on 23 October 2000 which contained statistics about the income of alternative employment which would have been taken up by the Applicant. The purpose of this was clearly to challenge the higher percentage of loss of earning capacity as contended by the Applicant. In such circumstances, the Application has all along been proceeded on the basis that the Applicant is claiming for a loss of earning capacity higher than 5% and the Respondent at all material times knew about this.

10. Hence, I consider it just to extend the appeal time limit to enable the Applicant to challenge the Certificate of Review of Assessment. I do not accept that this decision would in any way defeat the legislative intent behind the provisions of the Employees' Compensation Ordinance. If the legislative intent was that the 6 months' time limit was so final as contended by the Respondent, the legislature would not have given a discretion to the court to extend the time limit for such kind of appeal.

11. To oppose the application, Mr Wu also argues that the Respondent would suffer prejudice which cannot be compensated by an appropriate award of costs if the court were to allow the application. A decision in favour of the Applicant would effectively deprive the Respondent of the right to rely on the assessment made under the Certificate of Review of Assessment, and this is one of the prejudice which cannot be compensated by an appropriate award of costs. However, I am of the view that this is only one of the considerations that the court should take into account. This is not the sole consideration, otherwise I cannot think of any scenario that the court would allow an application of this sort.

12. Indeed, the Respondent at all material times knew about the basis of the Applicant's claim and was not misled in any way. The Respondent was only attempting to make use of the mistake of the Applicant or her solicitors to its advantage. In such circumstances, I would not consider it unjust to the Respondent even if I were to allow the application to extend the time limit for the appeal.

13. Mr Wu also argues that the Applicant has not submitted any evidence to explain why the application is made at such a late stage. I agree that the application has not been prepared in a very satisfactorily manner. Apart from the lack of supporting affidavits, the Applicant's solicitors have not even taken out a proper summons for the application. However, I do not consider it fatal to the application. Taking into account the fact that the present application has all along been proceeded on the basis that the Applicant did not accept the 5% loss of earning capacity, I still consider it just, even in the absence of satisfactorily explanation, to allow the application to extend the time limit for the appeal.

14. Lastly, Mr Wu argues that the MTR case provides that such kind of application must be made prior to the actual hearing of assessment. However, I do not accept that that was what the learned judge meant in page 1237 of the judgment. I am of the view that what the judge meant was that such kind of application should be made before the actual hearing of evidence in the assessment. Indeed, section 18(2) does not contain any express provision that such kind of Application must be made before a particular time, and so I do not accept Mr Wu's submission in this regard.

15. In such circumstances, I allow the Applicant's application to extend the time limit to appeal against the Certificate of Review of Assessment out of time.

16. These are the reasons I give in relation to the present application.