CHAN MAN SAU v. 風采中學（教育評議會主辦）法團校董會

DCEC 2171-2, 2174/2020,
838/2022, 961-2/2022

[2025] HKDC 1749

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2171 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2172 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2174 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 838 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 961 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 962 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION
(Variation of Costs Order Nisi)

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1.  On 13 August 2025, after a 4-day trial, this Court handed down its judgment on the consolidated trial of these 6 sets of employees’ compensation proceedings brought by the Applicant, giving judgment to the Applicant and awarding compensation to him of HK$300 in DCEC 2171/2020 (“DCEC 2171”) and dismissing the other 5 sets of proceedings (collectively “the Remaining 5 Proceedings”, and individually “DCEC 2172”, “DCEC 2174”, “DCEC 838”, “DCEC 961” and “DCEC 962”).

2.  I gave a costs order nisi at §72 of the Judgment (“the Costs Order Nisi”) ordering the Respondent to pay the Applicant’s costs of DCEC 2171 and the Applicant to pay the Respondent’s costs in the Remaining 5 Proceedings, with certificate for counsel; and that for the purpose of taxation, I indicated that DCEC 2171 took up 10% of the time of the trial.

3.  The Applicant, who continues to act in person, issued 6 sets of letters dated around 23 August 2025, one in each of the 6 sets of proceedings, applying for the following variations to the Costs Order Nisi:

(a) That there be no order on costs for the Remaining 5 Proceedings, or alternatively, the Applicant is only to pay 50% thereof;

(b) That the order for costs for the Remaining 5 Proceedings be made “合併訟費” to avoid over charging and duplication by the Respondent; and

(c) There be a direction that DCEC 2171 took up 20% of the trial time instead of 10%.

4.  On 27 August 2025, the Respondent took out a summons each in 4 of the 6 sets of proceedings (together, “R’s 4 Summonses”) namely DCEC 2171, DCEC 2172, DCEC 2174 and DCEC 962 (collectively “the 4 Proceedings”), to apply for variations of the Costs Order Nisi to visit the Applicant with the consequences provided by O 22 r 23 of the Rules of District Court based on the fact that sanctioned payments have been made by the Respondent in the 4 Proceedings pursuant to O 22 and the Applicant has failed to obtain a judgment in each of the 4 Proceedings better than what were so paid.

5.  Additionally, in the summonses in DCEC 2172 and DCEC 2174, and relying on a Calderbank letter dated 1 February 2021 sent to the Applicant, the Respondent also seeks in these 2 sets of proceedings indemnity taxation for costs incurred since 17 February 2021, being the date the Calderbank offers ought to have been accepted by the Applicant. At the hearing and upon query by the bench, the Respondent, quite rightly, indicated that it no longer pursued this additional basis for indemnity costs.

6.  This was the hearing of these cross applications. The Applicant however was absent from the hearing. I was satisfied by the respective 3^rd affirmations of Lee Siu Wing Eric filed in each of the 4 Proceedings that R’s 4 Summonses have been duly served to the Applicant by ordinary post to his residential address, which is his service address, and thus the Applicant has due notice of this hearing. Moreover, by a letter dated 28 September 2025 sent to the Court, the Applicant claimed that he would not be able to attend this hearing because he might lose his job if he applied for leave from his work to attend this hearing. As the Applicant chose to be absent, I proceeded with the hearing. Since the Applicant has set out the bases and reasons in, and enclosed documents he relied on with, his letters, I will treat the letters as his written submissions and consider the matters accordingly.

The sanctioned payments

7.  The Respondent made the following sanctioned payments into Court in satisfaction of the respective entire claims (including interest) pursuant to O 22 r 5:

(a) in DCEC 2171, HK$380 on 11 February 2022;

(b) in DCEC 2172, HK$1540 also on 11 February 2022;

(c) in DCEC 2174, HK$390 also on 11 February 2022; and

(d) in DCEC 962, HK$3,000 on 18 April 2023.

O 22 r 23

8.  O 22 r 23 provides:-

“Costs consequences where plaintiff fails to do better than sanctioned offer or sanctioned payment (O. 22, r. 23)

(1) This rule applies where a plaintiff—

(a) fails to obtain a judgment better than the sanctioned payment; or

(b) fails to obtain a judgment that is more advantageous than a defendant’s sanctioned offer.

(2) The Court may by order disallow all or part of any interest otherwise payable under section 49 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for some or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to—

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.

(5) Where this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so.

(6) In considering whether it would be unjust to make the orders referred to in paragraphs (2), (3) and (4), the Court shall take into account all the circumstances of the case including—

(a) the terms of any sanctioned payment or sanctioned offer;

(b) the stage in the proceedings at which any sanctioned payment or sanctioned offer was made;

(c) the information available to the parties at the time when the sanctioned payment or sanctioned offer was made; and

(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the payment or offer to be made or evaluated.

(7) The power of the Court under this rule is in addition to any other power it may have to award or disallow interest.”

9.  Of note is that O 22 r 23(5) states mandatorily that the Court shall make the orders referred to in O 22 r 23(2), (3) and (4) unless the Court considers it unjust to do so.

The contentions raised by the Applicant

10.  As I understand it, the Applicant made the following contentions in his letters.

11.  First, he said he only received the Notice of Sanction Payment in DCEC 962 and has never received or read the Notices of Sanction Payment in the other 3 sets of proceedings. I do not accept this contention not only because the respective certificates of service of the 4 Notices of Sanction Payment[1] have been duly filed by the solicitors for the Respondent pursuant to O 22 r 6, but also, and more tellingly, in 2 letters dated 9 February 2025 and 1 March 2025 to the District Court (apparently for the purpose of mediation), the Applicant said the same thing, namely:

“ 和解處理各個案件

(DCEC2171/2020; 2172/2020; 2174/2020; 838/2022; 961/2022 及 962/2022)

…

可是，最近本人整理過去答辯人寄給我的大量信件時，才發現及知悉原來答辯人曾就上述僱員補償案件，曾提議與本人進行和解（見附件2），並已將有關和解表格寄給本人回覆及將和解費用存檔在法庭內，因為當時本人因工傷病假，精神及健康均欠佳，漏看了而不能回應有關和解的信件。” (my emphasis)

12.  In these 2 letters, it was quite clearly stated that the Applicant did receive a large number of correspondences posted by the Respondent to him. It was also there stated that the Respondent has paid the money into Court and mailed him the forms in respect of “上述僱員補償案件” (as can be seen from the caption, the term referred to the 6 sets of proceedings) and not just such letter or form in respect of DCEC 962 only, as he now claims. It was there explained that he had overlooked and did not respond, again, without distinguishing the situation in DCEC 962 (the Notice of Sanctioned Payment of which he now claims he has received) with that of the other 5 sets of proceedings (the Notices of Sanctioned Payment of which he now claims he has never received).

13.  I thus reject his first contention.

14.  Second, the Applicant said that he merely wanted to get back reimbursements of his medical expenses, he did not sue the Respondent “on purpose” (his words: “並非有對(前)僱主展開提告的意思或意圖”), that he had indicated his agreement to settle and has proposed settlement many times, but it was the Respondent who failed to take the initiative to settle, even engaged a barrister to purposefully increase his liability on costs (his words: “繼續不斷的作出法律程序甚至聘用大律師去進行審訊等等，有意圖及意識地來增加本人的訟費負擔，本人認為此事不合理不道德及懲罰性的舉動”).

15.  The Applicant might have been eager to settle these 6 sets of proceedings, as shown from his 5 letters to the Respondent (dated 1 March 2025, 12 April 2025, 5 May 2025, 23 May 2025 and 26 June 2025) setting out his offers for settlement. However, the terms offered were these. The 1^st offer asked for payment of HK$3,000 in each of the 6 sets of proceedings. The 2^nd offer asked for payment of HK$3,500 in each of the 6 sets of proceedings plus aggregate medical fees in the sum of HK$14,890. The 3^rd offer asked for payment of HK$3,800 in each of the 6 sets of proceedings and the said medical fees. The 4^th offer asked for payment of HK$4,000 in each of the 6 sets of proceedings and the said medical fees. Only in the last offer made about a month before the trial was to commence that he asked for the payment of the said medical fees only.

16.  In other words, the Applicant had been eager to settle, but (save the last offer) to settle on his own increasingly stringent terms. Clearly, the Respondent cannot be faulted for its lack of willingness to settle on the Applicant’s terms, and especially when the Respondent has already made sanctioned payments according to O 22 in the 4 Proceedings. In my view, such conducts of the parties clearly do not justify any departure from the usual award of costs following the event.

17.  Third, the Applicant contended that he should only pay 50% costs of the Remaining 5 Proceedings because a barrister should not have been engaged, that there are similarities in the documents between the 6 sets of proceedings, that the same amount of work was expended but it was split into 6 sets of proceedings to potentially charge 5 more times than justified.

18.  The concern that the sum total of the amounts billed separately in the 6 sets of proceedings might be excessive bearing in mind that only same or similar works were involved is a concern that I think has some validity. It is also the reason behind the Applicant’s application for the so-called “合併訟費”. However and as a matter of principle, such concern does not justify depriving the winning party – the Respondent – 50% of its costs. Moreover, I am of the clear view that the engagement of counsel for trial was justified. Rather, I think the effective and usual way to address the concern is for me to give an express direction that the Respondent’s costs of these proceedings, if and when taxed, be taxed together by the same Master, thereby, the Applicant can raise this concern or relevant objections for the Master’s due consideration and taxation. At the hearing, Mr Ho fairly did not raise any objection to such a direction being given.

19.  Fourth, the Applicant contended in his letter dated 28 September 2025 that the indemnity costs now sought by R’s 4 Summonses were a penalty, a means for the solicitors and the insurer to earn more money, and are unreasonable and unfair. I cannot accept this contention as valid at all. The Respondent merely conducted itself according to O 22 and engaged the procedures provided therein to facilitate settlement on what it considered reasonable terms. The Applicant, having refused to accept the sanctioned payments and continued to prosecute the proceedings in the hope to obtain judgments better than the sanctioned payments, would have to face the consequences as stipulated in O 22 r 23 when he now fails to obtain judgments that beat the sanctioned payments.

20.  Lastly and for completeness, I need to mention that in the letters the Applicant prayed in aid the Costs in Criminal Cases Ordinance Cap 492. However, as the title of the Ordinance makes clear, its provisions only apply to criminal proceedings, which the present 6 sets of proceedings are not.

Conclusions on the Applicant’s applications

21.  For reasons given above,

(a) I refuse the Applicant’s application to vary the Costs Order Nisi in respect of the 5 Remaining Proceedings to no order as to costs or that the Applicant only pays 50% thereof;

(b) I will give the direction as indicated in paragraph 18 above; and

(c) As will be explained below, the apportionment of the trial time in respect of DCEC 2171 becomes academic.

Imposing the O 22 r 23 consequences

22.  There is no dispute that the said 4 sanctioned payments were valid sanctioned payments under O 22. There is no dispute that the Applicant has failed to obtain respective judgments in the 4 Proceedings better than the sanctioned payments.

23.  As have mentioned, O 22 mandates the imposition of the consequences prescribed by O 22 r 23(2), (3) and (4) unless the Court considers it unjust to do so. In my view, and as have explained, nothing raised by the Applicant comes even close to showing that it is unjust to do so. To state the obvious, his own subjective views that he was perfectly entitled to the medical expenses, that the medical expenses were but “trivial sums” that the Respondent ought to have paid him, that he has been unfairly and unfavourably treated are no yardstick for the Court to consider what is or is not unjust.

24.  Accordingly, I accede to the application by R’s 4 Summonses. I accept as reasonable and right the Respondent’s stance that (a) the last day the sanction payments in DCEC 2171, DCEC 2172 and DCEC 2174 ought to have been accepted was 17 March 2022, being the date the 3 Notices of Sanctioned Payment was sent by post (11 February 2022) plus 7 days for the postage and 28 days as the period within which the sanctioned payments might have been accepted without leave of Court and (b) the last day the sanction payment in DCEC 962 ought to have been accepted was 16 May 2023, being the date the Notice of Sanctioned Payment was served by hand to the Applicant’s address for service (18 April 2023) plus 28 days.

Disposal

25.  In the premises, the costs orders of the 4 Proceedings will be varied to the following:

DCEC 2171

(1) The Respondent pays the Applicant his costs of the proceedings (including any costs reserved) incurred on or before 17 March 2022 taxed on party and party basis; and

(2) The Applicant pays the Respondent its costs of the proceedings (including any costs reserved) incurred on and after 18 March 2022, with certificate for counsel, taxed on indemnity basis;

DCEC 2172 and DCEC 2174

The Applicant pays the Respondent its costs of the proceedings (including any costs reserved), with certificate for counsel, taxed on party and party basis for the costs incurred on or before 17 March 2022, and taxed on indemnity basis for costs incurred thereafter;

DCEC 962

The Applicant pays the Respondent its costs of the proceedings (including any costs reserved), with certificate for counsel, taxed on party and party basis for the costs incurred on or before 16 May 2023, and taxed on indemnity basis for costs incurred thereafter;

26.  The Costs Order Nisi in respect of DCEC 838 and DCEC 961 is made absolute.

27.  There be a direction that the Respondent’s costs in any of the above proceedings, if and when taxed, shall be taxed together before the same Master.

28.  Pursuant to O 22 r 4(b), I order the Applicant to pay to the Respondent interest on its costs,

(a) in respect of DCEC 2171, DCEC 2172 and DCEC 2174, such costs paid to its solicitors on or after 18 March 2022; and

(b) in respect of DCEC 962, such costs paid to its solicitors on or after 17 May 2023

at half of the aggregate rate, being judgment rate plus 2% per annum, from the said respective dates to the date of the Judgment and thereafter at judgment rate until full payment of such costs.

29.  As applied for by the Respondent, there shall be an order that the sanction payments made by the Respondent in the 4 Proceedings be paid out to the Respondent’s solicitors save in DCEC 2171 HK$300 be paid therefrom to the Applicant and the balance to the Respondent’s solicitors.

30.  For taxation purposes, I would indicate the proportion of time of the consolidated trial to be allocated to the relevant proceedings. By the above costs orders, the Applicant would be paying the Respondent its costs of the whole trial. The proportion needed indication is the proportion of time allocated to the trial of the 4 Proceedings in respect of which the Applicant is to pay on indemnity basis (while the costs of trial of DCEC 838 and DCEC 961 would be paid by the Applicant on party and party basis). The proportion of 25% the Applicant advocated to be allocated to DCEC 2171 thus becomes academic. Considering (a) the trial that took up proportionately more time was DCEC 2172, and (b) the trial of DCEC 838 and DCEC 961 took up proportionately less time, I agree with Mr Ho’s apportionment of 75% trial time to the 4 Proceedings, and would so indicate to the taxing Master.

31.  I order the Applicant to pay the Respondent its costs of the parties’ cross applications to vary the Costs Order Nisi, with certificate for counsel.

32.  I thank Mr Ho for his assistance.