CHAN KAM HOI v. DRAGAGES ET TRAVAUX PUBLICS

IN THE COURT OF APPEAL

1997, No. 58

(Civil)

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J U D G M E N T

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Nazareth V-P:

1. This is an appeal by the defendant against the decision of Liu JA given on 17th April refusing the application of the defendant to strike out paragraph 3 in the statement appended to the plaintiff's notice to set down his appeal. It is desirable that I explain the background very shortly.

2. The plaintiff was a carpenter. While working for the defendant on a building site he had two accidents, on 25th June 1998 and 6th September 1998, in which he injured his back. He has not worked since and he claimed damages. On 7th March 1997 Deputy Judge Woolley gave judgment in his favour and assessed damages at $975,133.06. After deduction of compensation already paid under the Employees Ordinance, that left a sum of $535,383.38. Judgment was entered for the plaintiff in that sum together with interest and costs of the action to the plaintiff up to 31st May and to the defendant after that. This appears to have resulted from a payment in of $700,000 by the defendant on that day.

3. The plaintiff was aggrieved to put it mildly and he filed a notice of appeal on 8th March 1997, the day after the judgment. He also put in a notice to set down and attached to it a statement on that same day, 8th March.

4. Paragraph 3 of this statement was in these terms:

"I make an application to the Court for obtaining the court's evidence when the $0.7 million is paid by the defendant."

5. On 4th April 1997 the defendant took out a summons in this Court to have paragraph 3 deleted. It came before Liu JA. He refused the application, but upon what ground is not clear. The legal position, however, is very clear. Order 59 r 12A of the Rules of the Supreme Court provides for non-disclosure of payments in the court in the following terms:

"Non-disclosure of payment into Court

12A. -(1) Where-

(a) any question on an appeal in an action for a debt, damages or salvage relates to liability for the debt, damages or salvage or to the amount thereof, and

(b) money was paid into court under Order 22, rule 1, in the proceedings in the court below before judgment,

neither the fact of the payment nor the amount thereof shall be stated in the notice of appeal or the respondent's notice or in any supplementary notice or be communicated to the Court of Appeal until all such questions have been decided. This rule shall not apply in the case of an appeal as to costs only or an appeal in an action to which a defence of tender before action was pleaded.

(2) For the purpose of complying with this rule the appellant must cause to be omitted from the copies of the documents lodged by him under rule 9(d) and (f) every part thereof which states that money was paid into court in the proceedings in that court before judgment."

6. That position is made even clearer in para. 59/12A/1 at p.1014 of Volume 1 of the Supreme Court Practice 1997 and indeed in the Hong Kong Supreme Court Practice at p. 411 of Part II, paragraph [7392]-[7432] which refers to the case of Shek Kam-tin v Chan Fuk-sang and anor [1979] HKLR at 532 in which Sir Denys Roberts CJ reiterated that the position was that such information was not to be disclosed in the Court of Appeal. The position is therefore quite clear. The mandatory requirement of the law requires this offending paragraph to be deleted.

7. We accordingly allow the appeal and order that paragraph 3 in the statement that accompanied the notice of setting down to be deleted.