HO YIN FAI v. WAH FUNG DECORATION & INSULATION CO. AND ANOTHER

HCMP 948/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS No. 948 of 2009

(On An Intended Appeal from DCEC No. 913 of 2007)

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BETWEEN:

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REASONS FOR JUDGMENT

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Hon. Yuen JA (giving the Reasons for judgment of the Court):

1.  This is an application for an extension of time to lodge an appeal from a judgment of Judge Chow given on 13 March 2009 in which he found Wah Fung Decoration & Insulation Company (the 1^st Respondent in DCEC 913/2007) liable to Ho Yin Fai (the Applicant in those proceedings) for employees’ compensation and dismissed Mr Ho’s case against Ng Man Sing (the 2^nd Respondent in those proceedings). At the conclusion of the hearing, we dismissed Wah Fung’s application with costs to Mr Ho and Mr Ng. Our reasons are as follows.

Background

2.  Briefly the facts were that on 23 February 2006, Mr Ho received a telephone call from Mr Ng asking if he would be free to do some work. Mr Ho was told the wage would be $500 a day and where to meet up the next day.

3.  The next day (24 February 2006) Mr Ho met up with Mr Ng at the work site, where Mr Ng introduced Mr Ho to a person called Wah Gor who was identified as “the boss”. Mr Ho then spent the day doing demolition works at the site with Mr Ng, demolishing the flooring, a brick wall, a window and a false ceiling.

4.  The day after that (25 February 2006), Mr Ho and Mr Ng carried on with the demolition works. When they finished, Wah Gor asked them to demolish a roller shutter. Mr Ho suffered an injury when he was undertaking that work.

ECC claim

5.  Mr Ho sued Wah Fung and Mr Ng for employees compensation.

Wah Fung

6.  Wah Fung was the company which had asked Mr Ng to do the demolition works. That was not disputed (although there was a dispute whether Mr Ng was Wah Fung’s sub-contractor or an employee).

7.  Wah Fung’s case was that on 23 February 2006 Wah Gor had asked Mr Chu Kam Ming of Wah Fung to undertake the above 4 items of demolition works, together with the re-laying of new flooring. The same morning Mr Chu then asked Mr Ng to undertake the demolition works. The judge found that in undertaking those works, Mr Ng was not Wah Fung’s sub-contractor but was its employee. There was no intended appeal from this finding.

Instructions from Wah Gor

8.  Mr Ng’s evidence as accepted by the judge was that that same morning (23 February 2006) Mr Chu had told him to listen to Wah Gor’s instructions. Mr Chu did not explain who Wah Gor was, nor did he delimit the scope of Wah Gor’s authority. Mr Ng assumed that both Mr Chu and Wah Gor worked in Wah Fung together.

9.  That evening Wah Gor told Mr Ng to get another worker to help speed up the work, hence Mr Ng’s call to Mr Ho that day and Mr Ho’s attendance for work thereafter. Also when Wah Gor told them to demolish the roller shutter, he did so although he did tell Wah Gor that he had no experience in doing that work.

Judgment

10.  The judge held that Mr Ng was Wah Fung’s employee (a finding against which – as I have noted – there is no intended appeal), that Mr Ho was also Wah Fung’s employee and that his injury arose out of and in the course of his employment doing work on Wah Gor’s instructions.

11.  Accordingly the judge dismissed Mr Ho’s claim against Mr Ng and ordered Wah Fung to pay Mr Ho employees compensation. The order was made on 13 March 2009.

Deadline for appealing

12.  Pursuant to s.23(4) Employees Compensation Ordinance, cap.282 no appeal shall lie after the expiration of 30 days from the date of the order, provided that the Court of Appeal may, if it thought fit, extend the time within which to appeal notwithstanding that that time had elapsed. Since the order was made on 13 March 2009, the time for appealing elapsed on 12 April 2009. No notice of appeal was lodged.

Attempt to file Notice of Appeal in April 2009

13.  On 21 April 2009 Wah Fung’s solicitors purported to serve a copy of the Notice of Appeal on Mr Ho’s solicitors and on 22 April 2009 Wah Fung’s solicitors attempted to file the Notice of Appeal but the Registry refused to accept filing on the ground that it was out of time.

Application for extension of time to appeal

14.  It was not until 20 May 2009 that the present application for extension of time to appeal was filed.

15.  I will first consider Wah Fung’s argument on how the deadline for filing the Notice of Appeal is to be calculated. It is clear from the language of s.23(4) ECO that the deadline is 30 days from the date of the order. There is no room for importing the different language of O.59 r. 4(1) Rules of the High Court or O.58 r.2(4) Rules of the District Court which expressly stipulate that the time for appealing is to be counted from the date of sealing of the order.

Guidelines

16.  It is well-established that in the exercise of its discretion whether to extend time to lodge a notice of appeal, the court would normally take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the prejudice to the other party to the appeal (Chiu Sin Chung v Yu Yan Yan, Angela [1993] 1 HKLR 225).

17.  As for the balancing of these factors, it is well-established that where the delay is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless.

18.  However, even though the delay is unsubstantial, if the delay was inexcusable, the intended appellant must show a real prospect of success on the merits (Secretary for Justice v Hong Kong and Yaumatei Ferry Co [2001] 1 HKC 125).

19.  As for prejudice to the other party, the mere fact that it would suffer no prejudice if time is extended is not by itself a ground for extending time.

Discussion

20.  In the present case the length of the delay is more than 30 days. That is quite a substantial delay.

21.  As for the reasons for the delay, there is an affirmation from Wah Fung’s solicitor saying that he had thought that the deadline for filing the Notice of Appeal should be calculated from the date of sealing the order (23 March 2009). This accounts for why he attempted to file a Notice of Appeal on 22 April 2009. For reasons discussed above, his view was incorrect.

22.  In any event, after the Notice of Appeal was rejected by the Registry, no steps were taken to apply for an extension until 20 May 2009. The excuses given were first, that the solicitor was changing firms and secondly, Mr Chu’s bare assertion that Wah Fung needed time to sort out its financial arrangements. Neither is a satisfactory reason for the delay as the Notice of Appeal had already been prepared and would have been filed on 22 April 2009 had it not been out of time.

23.  As for the merits of the intended appeal, we did not see any reasonable prospects of success. First Wah Fung argued that Mr Ho had not been taken on by Wah Fung as an employee. We do not think such an argument has a reasonable prospect of success. Mr Chu had told Mr Ng to listen to Wah Gor’s instructions without identifying who Wah Gor was or delimiting the scope of his instructions. As such Wah Gor had apparent authority to give orders to Mr Ng in connection with the works for which Mr Ng was employed. That must include the measure of speeding up the works by the recruitment of an extra worker. Accordingly it is clear that Mr Ho had been employed by Wah Fung, the latter having given apparent authority to Wah Gor to give instructions to Mr Ng, and Wah Gor having told Mr Ng to recruit an extra worker for the completion of the works.

24.  The other argument was that even if Mr Ho was Wah Fung’s employee, the demolition of the roller shutter was outside the scope of his employment. Again we do not think such an argument has a reasonable prospect of success. Mr Ho was not present when Mr Chu told Mr Ng what demolition works were to be undertaken. He was a casual worker and Wah Gor had been introduced to him by Mr Ng as “the boss”. Mr Ng himself had been given that impression by Mr Chu.

25.  In any event it cannot be said that the demolition of the roller shutter was outside the course of the work which Mr Ho was employed to do and not incidental to it. It was argued that the judge had not expressly dealt with this issue but that may be because the argument was clearly unmeritorious. Mr Ho had been engaged in demolition works, including demolition of a window. The demolition of a roller shutter was along the same lines. The examples given in argument of a workman injured when sent to place a bet at a betting centre, or a decoration worker at a coffee shop injured when ordered to serve coffee, are so different in nature so as to be not in point at all.

Order

26.  For the above reasons, we dismissed the application and ordered Wah Fung to pay the costs of Mr Ng which we assessed at a gross sum of $600 and to pay the costs of Mr Ho, to be taxed if not agreed, with Mr Ho’s own costs to be taxed in accordance with Legal Aid Regulations.