TSANG CHI CHUNG v. YU KIN SAN t/a YU'S TRADING CO AND ANOTHER

DCEC 701/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 701 OF 2015

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DECISION

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A.　Brief background

1.  At the hearing on 9 May 2016 of the respondents’ summons issued under Order 18 r12 of the Rules of the District Court (“RDC”) for an order compelling the applicant to quantify his claim, I dismissed the summons (“Dismissal Order”). (The more detailed background facts and the reasons for the decision can be found in my unreported decision of these proceedings dated 9 May 2016).

2.  This prompted counsel for the respondents, Mr Lam, to immediately make an oral application for leave to appeal against the Dismissal Order.  I declined Mr Lam’s application for leave to appeal, and further made a costs order against the respondents, which costs were assessed at $500 upon the applicant’s legally-aided assigned solicitor having waived the right to any further sum of money in respect of the costs of the application (this order is referred to as the “Leave Refusal Order”).

3.  Subsequent to the Leave Refusal Order, it was then realized that s23 (“s23”) of the Employees’ Compensation Ordinance (“ECO”), which provides for an unqualified right to appeal for employees’ compensation proceedings had escaped everyone’s attention. This means that it was not necessary for the respondents to obtain leave to appeal. To address this irregularity before the Leave Refusal Order was perfected; this court drew the parties’ attention to s23 and directed the re-opening of the respondents’ leave application for re-consideration.  The parties were further asked whether they would agree to the setting aside of the Leave Refusal Order in the light of the provisions of s23 that had been drawn to their attention.

4.  In their respective written responses, the solicitors for both parties however took the view that leave for appeal was required.

5.  After having considered the parties’ written responses, this court on 17 May 2016 disposed of the matter of re-consideration on paper by making these orders:  (i) the Leave Refusal Order was set aside; and (ii) no order in respect of the respondents’ application for leave to appeal (“Leave Refusal Order as varied”).

6.  The reasons  given for the making of the Leave Refusal Order as varied were stated as follows:

“Court’s view

5. Section 23 of the Ordinance provides:

“(1) Subject to the provisions of this section and of section 13, an appeal shall lie to the Court of Appeal from any order of the Court.

(2)Except with the leave of the Court or of the Court of Appeal (which shall not be granted unless in the opinion of the Court of Appeal some substantial question of law is involved in the appeal) no appeal shall lie if the amount in dispute is less than $1,000.

(3) No appeal shall lie in any case in which the parties have agreed to abide by the decision of the Court, or in which the order of the Court gives effect to an agreement come to by the parties”.

6. The statutory provisions are clear. An appeal against an order made in the employees’ compensation proceedings can be issued as of right. The commentary in the Hong Kong Civil Procedure 2016 Vol 2 p1269 at para Q1/23/1 also states:

“As a general rule, an appeal lies under s.23 to the Court of Appeal against any order of the District Court made in Employees Compensation Ordinance proceedings. Thus appeals may be brought against interlocutory or final orders. Appeals lie as of right, on questions of law and fact, without the necessity of obtaining leave, except where the Ordinance requires leave to be granted or the Ordinance excludes any right of appeal”. (emphasis added)

7. According to the provisions in s23, the requiring of leave to appeal only applies to two situations:

(i) section 13 of the Ordinance, which deals with the distribution of compensation in fatal cases.

(ii) “the amount in dispute is less than $1,000.”

8. In my view, it is plain that none of the exceptions requiring leave exist in the present case.

9. For these reasons, I am unable to accept the parties' submissions.  I conclude that the application for leave was wrongly made.”

7.  The solicitors for the respondents however on 28 May 2016 made written request for further consideration of the Leave Refusal Order as varied. They took the view that leave to appeal was required, and suggested that the court instead dismiss the respondents’ application for leave to appeal on the ground that the leave application was misconceived. This, they proposed, would permit them to further obtain leave to appeal from the Court of Appeal.  They also alluded to two unreported decisions of DCEC 619/2014 and CACV 262/2014 [1] in their letter to support their contention that leave to appeal was required.

8.  CACV 262/2014 dealt with an appeal against the decision of a deputy judge in DCEC 619/2014 in respect of an interim payment order the judge made. Apart from alluding to the case references of these two decisions, the solicitors did not make further submissions as to their relevancy. It should therefore be mentioned at this stage that these decisions do not directly deal with the point as to whether leave to appeal was required. I believe that the reason for the solicitors’ mentioning of these two cases is probably because of a reference in para 2 of CACV 262/2014 of ‘[l]eave was refused by the judge… this court granted leave with a direction for the expeditious hearing of the appeal’.

9.  Owing to the position the solicitors for the respondents took, I directed the parties to attend an oral hearing to dispose of the question of leave.

10.  At the directions hearing on 3 June 2016, the parties were therefore able to make further submissions in respect of the re-opening of the Leave Refusal Order.

11.  Central to the parties’ stance is that leave to appeal is required notwithstanding the provisions of s23.

B.　Is leave to appeal required s23 notwithstanding?

B.1　Parties’ common stance: leave is required

12.  Mr Lam for the respondents and Mr Ho, solicitor for the applicant, both took the position that leave to appeal against the Dismissal Order was required before the respondents could appeal to the Court of Appeal.

B.2　Respondents’ arguments

13.  Mr Lam urged me to dismiss the respondents’ application for leave to appeal on the ground, given the view this court took that leave was not required, that the application was misconceived.

14.  Mr Lam put forward three points in support of his view that leave to appeal was required.

15.  First, Mr Lam submitted that the RDC should be applicable to this application, referring to the commentary on s21 of the ECO at Hong Kong Civil Procedure 2016 Vol 2 at p1550, Q1/21/2 : paras 1 to 4.

16.  Second, the respondents’ intended appeal against the Dismissal Order is governed by s63A of the District Court Ordinance, whereby leave to appeal is required in civil matters.

17.  Third, the application for leave to appeal in the instant case should be governed by Order 58 r2(4)(c) of the RDC, which provides for the procedure for an application for leave to appeal against an interlocutory order.

B.3　Applicant’s submission

18.  Based on a Court of Appeal decision of譚耀煇 (Tam Yiu Fai) v Aberdeen Marina Holdings Ltd [2], Mr Ho suggested that leave to appeal would be required because the respondents’ summons for the provision of quantum under Order 18 r12 of the RDC is not concerned with any law arising from the ECO. 

C.　Court of Appeal decisions on the question of leave

19.  After hearing the parties’ submissions discussed in the preceding Section B, I have surveyed the cases concerning leave to appeal mentioned in the same para Q1/23/1 I have quoted in para 6 under the hearing “Court’s view” in para 6 above. Apart from Tam Yiu Fai to which Mr Ho referred, the following cases have (apart from Wong Sing Fung that was not mentioned in the passage of Q1/23/1 but was referred to in the Tam Yiu Fai case) been  referred to in the passage of the commentary on the question of leave:

(1)   Wong Po Sin v New Universal Paper Co Ltd [1973] HKLR 59;

(2)   Wong Sing Fung v Fung Ming Stainless Engineering Company Ltd [1987] HKCU 69;

(3)   Chan Chu Ngan v Wong Woon Pui & Anor [1992] HKLY 458;

(4)   Ngai Chu v Lau Pong Chun, unrep, CACV 402/2004, [2005] HKEC 1844; and

(5)   Tsang Kwong Tong v Tennille Decoration & Design Ltd & Ors [2006] HKEC 248.

20.  I will briefly discuss each of these cases in chronological order below.

21.  In Wong Po Sin, the full court of the Court of Appeal, after having examined the English legislation relating to workmen’s compensation legislation, stated that for workmen’s compensation, there was (subject to the restrictions regarding obtaining leave) a general right of appeal on matters of fact as well as law.

22.  In Wong Sing Fung, the full Court of Appeal was tasked with a question as to whether the appellant was entitled to appeal without obtaining leave of the District Court.  The Court there did not decide on the question of whether leave was required but went ahead to grant leave to appeal if it be necessary and to treat the hearing before it as the hearing of the appeal.

23.  In Chan Chu Ngan, the full Court of Appeal decided that the determination of any claim by an employee against his employer’s insurers under ss43 and 44 of the ECO is an order of the court within the meaning of s23.  It held that leave was not required to appeal against an order for dismissal of the claim.

24.  In Tam Yiu Fai (the case Mr Ho referred to), Mdm Justice Le Pichon, sitting with Tang JJA and Suffiad J held (at p 8) that a costs order granted in a summons in an employees’ compensation proceeding falls ‘under “the law, rules and practice” of the District Court or in connection with civil actions in that court which by virtue of the provisions of section 21(1) of the ECO apply to compensation claims….. “any order of the Court”  would not include costs orders since a costs order would not involve substantive questions of law but the exercise of the judge’s discretion’.

25.  Ngai Chu was decided after Tam Yiu Fai.  At the appeal, the question of leave was not pursued although it had been raised.  The Court of Appeal was referred to the previous decisions of Wong Po Sin and Chan Chu Ngan. In his judgment, Cheung JA expressed his view that:

“30. … the meaning of [s] 23 is clearly that leave is not required. The appellant is entitled to have an unqualified right of appeal. Further [s] 23(2), which restricts an appeal if the amount in dispute is less than $1,000 unless leave is granted, could only mean that leave is not required in other situations.”

26.  The last case, Tsang Kwong Tong, was also decided after Tam Yiu Fai.  This was an application for extension of time to appeal concerning an employee’s compensation claim heard by a single justice of appeal. The appeal was out of time as a result of the mistake made by the parties that leave to appeal under s23 was required, and it was only later realized that leave to appeal was not required.

27.  By the doctrine of stare decisis, the Court of Appeal is bound by its previous decisions. From the survey of the above appeal decisions concerning employees’ compensation claims, it would appear that the law governing appeals can be stated as follows:

(1)   There is a general right of appeal to the Court of Appeal on both fact and law ;

(2)   Under s23, there is (subject to the statutory restrictions set out in s23) an unqualified right of appeal without the requirement of leave;

(3)   The unqualified right of appeal does not apply to an order that is not “any order of the Court” (as defined in ECO). A costs order in a summons of an employee’s compensation claim is not “any order of the Court” and leave to appeal is required.

28.  Thus, in deciding whether leave to appeal is required against the Dismissal Order, I need to decide if the Dismissal Order falls within “any order of the Court”.

E.　Is the Dismissal Order within “any order of the Court”?

29.  I consider that the Dismissal Order is within s23, i.e., that it is an “any order of the Court”. My reasons are as follows.

(1)   The Dismissal Order determines whether or not the applicant is required to quantify the amount of compensation he claims to be payable by the respondents under ss9, 10, and 10A of ECO.  It therefore relates to proceedings for the recovery of compensation as defined by the definition of “Court[3]” in s3 of the ECO.

(2)   The Dismissal Order is not a costs order made on a summons that would have, according to the decision in Tam Yiu Fai, required leave to appeal against.

D.　Were leave required, whether leave should be given?

30.  If however it were decided that the Dismissal Order is not an “order of the Court” within the meaning of s23, it would become necessary for me to determine whether I should grant leave to appeal against the Dismissal Order. Mr Lam at the oral application for leave simply repeated the same arguments which I had already rejected.  I considered that the respondents had failed to put forward new grounds to demonstrate that they have a reasonable prospect of success.

31.  Subsequent to the hearing, I have had sight of a Court of Appeal decision of Chan Kit v Sum WO Industrial Manufactory [1989] HKCU 464. This case was concerned with an appeal against a Judge’s order made on his own motion ordering the employee applicant “to file grounds of appeal” against the assessment of loss of earning capacity made by the medical board. In the parts of his judgment concerning the stipulated statutory forms specified by rule 16 of the Employees’ Compensation (Rules of Court) Rules for the commencement of employees’ compensation proceedings, Hunter J.A, provided very helpful guidance in relation to the respondent’s summons for quantum in that case. Perhaps, the respondents here should have, instead of issuing the summons that I had dismissed, followed, in my view, the instructive advice of the learned Justice of Appeal, stated as follows, by serving a request for particulars in the prescribed from stipulated by rule 18 of the Employees’ Compensation (Rules of Court) Rules:-

“What he may well be said to be required to do under the particulars of incapacity, and under particulars of compensation, is to say what he claims and how he arrives at it, and whether in particular he is relying upon an ordinance computation or whether he is going further and seeking to say that it is a case where s. 9(1A) applies. All those matters may well be material particulars. But he is not required by the rules to refer to the earlier assessment or review.

If the party against whom an application is made is dissatisfied by the information given, then rule 18 allows him to serve on the applicant a request for particulars:

“18(1) The respondent may, not later than 14 days after he has received notice of application, serve on the applicant a request in writing in Form 6 in the Schedule for further particulars of the grounds upon which the application is made ...”

Form 6 contains a request for particulars in the form of a questionnaire. So that if there is any defect in this application, if there is any validity in the criticism of the generalities used in answers to the question under paragraphs 5 and 8, the proper remedy here was for the respondent to apply in Form 6 for particulars. If he did that, he would be fully enabled to obtain all the information that was necessary for him to assess his position.”

32.  For the reasons stated above, I would have refused leave to appeal had it become necessary for me to make a determination as to whether leave was required.

F.　Disposal

33.  In the light of the reasons stated above, I consider that the respondents’ leave application was misconceived and it should therefore be dismissed.  Thus, the refusal of leave order in the Leave Refusal Order should be set aside.  The Leave Refusal Order as varied should also be set aside.  The costs order of the Leave Refusal Order however should stand. Thus, I grant the following orders:

(1)  The respondents’ application for leave is dismissed.

(2)  The costs order of 9 May 2016 shall stand.

34.  As for the costs after the Leave Refusal Order, I will hear further from the parties at the directions hearing on 10 June 2016.