IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES COMPENSATION CASE NO. 261 OF 1998
Coram: H H Judge Carlson in Court
Date of Ruling: 22 October 2001
R U L I N G
1. This is a claim for employee’s compensation which is four months out of time.
2. Under section 14(4) of the Employees’ Compensation Ordinance (“the Ordinance”) the court may hear and determine an application notwithstanding that it has not been made in due time if it issatisfied that there was reasonable excuse for the failure to make the application within the two year limitation period providedfor in section 14(1) of the Ordinance.
3. Today, the case has been listed for trial. Much time and money has been spent in getting it up and it is only now that I am requiredto deal with this crucially important preliminary issue. Both parties accept that the usual procedure has not been followed here,which is to ask the judge to rule on this point either at the first call-over or to adjourn the matter for argument at an early datebefore any further directions are given. What has happened here should not be allowed to recur. If I refuse to give leave, much timeand costs will have been unnecessarily incurred. With that, I now turn to the Ruling.
4. The most helpful recitation of the principles to be applied in deciding this sort of issue is to be found in the judgment of JudgeCharles in this court in the case of Wong Tak-man v Shaws & Sons Limited  HKDCLR 88. The principle is set out at pages 88 and 89 of the judgment which I should set out in full.
(See also Chan Wing-chun v Sun Chong Bleaching & Dyeing Factory Limited  HKDCLR 55, where Judge D’Almada Remedios, also in this court, applied the same reasoning.
5. The principle is clear. It must be applied to the particular facts of the case before the court. Particular decisions, and thereare many both reported and unreported, will rarely be of great assistance because, inevitably, they turn on their own facts. Withthis in mind, I must now consider the facts of this application.
6. The applicant was and continues to be an Assistant Officer 2 employed by the Correctional Services Department. He has been so employedsince 1982. This is the lowest rank in the service. He has been educated to Form 1. He was aged 32 at the date of the accident, whichwas on 13 December 1995. He was then stationed at the High Island Detention Centre, a closed camp for Vietnamese asylum applicants.He was riding his motorcycle and returning from the staff canteen within the camp when he ran into the back of a car that was beingdriven by a fellow officer. He sustained serious injuries to his left knee and pelvis and was hospitalised for four weeks. Six yearslater, he continues to walk with a limp.
7. At the forefront of his case for not making his application within the two year limitation period, is the fact that his principalofficer, Mr Kwan, told him as soon as he returned to work after his stay in hospital, that the Department would not be treating hiscase as one of Employees’ Compensation under this Ordinance because he had broken the rules and not taken the Department’s transportto the staff canteen – he had chosen to take his own motorcycle. The principal officer then cited a similar case from Cape CollinsonPrison. This Departmental position was then repeated in January or February 1996 by Chief Officer Foo from the Staff Welfare Unit(who I presume is also of substantial rank) when he visited the applicant at home. Also present on this occasion was Mr Lau, a morejunior officer also from the Staff Welfare Unit. This had also been said to him by other officers including the Hospital Officerat the Detention Centre.
8. The applicant says that as these views had been expressed to him from on high by officers who were of far greater rank than his andwho apparently spoke ex cathedra, he merely accepted that view as being correct. For that reason, he proceeded on the basis thata claim under the Ordinance was not available to him.
9. Then, in March or April 1998 (time had already expired by then), he was encouraged by a friend to try and make an application. Hesaw his solicitors in April and they advised him to make an application, which he did. Ms Alice Tsang who appears for him, pressedthe fact that the applicant is of the lowest rank in the service. His superiors apparently spoke with authority and appeared to knowwhat they were talking about. One should set the matter within its proper context. This is a disciplined service. Although it isnot suggested that these senior officers set out to deliberately mislead the applicant, they did mislead him and that taken overthe whole of the two year period, this must amount to a reasonable excuse and that leave should be given, particularly where thedelay is relatively modest and no forensic prejudice has been caused to the respondents.
10. Mr Gidwani, in opposing the application, submits that these superior officers were merely expressing the defendant’s viewpoint. Theapplicant was free to go off and seek advice long before the expiry of the two year period, and he has also helpfully drawn attentionto Wong Tak-man v Shaws & Sons Limited supra., Prophet v Roberts  11 BWCC 301, and Yan Hon-kam v Sun Fook Kong Construction Company & Another DCEC133/2001, unreported.
11. As I said at the outset, one needs to attend to the detail of the particular case. In this matter, I am impressed by the fact thatthe application is set against the background of a disciplined service and that this applicant, of the lowest rank, was being toldon more than one occasion that this sort of application was not maintainable. When one stands back from this situation, it is easyto understand how and why this officer accepted the firm views being put forward by his superiors.
12. This does, in my view, amount to a reasonable excuse which attained for the whole of the two year period. I will give leave, andin doing so I have also had regard to the relatively short delay and the lack of prejudice to the respondents.
Present: Ms Alice Tsang, instructed by Messrs Lee Chan Cheng, for the Applicant
Mr Victor Gidwani, instructed by Department of Justice, for the Respondent