SUN JIANQIANG v. TRANS-ISLAND LIMOUSINE SERVICE LTD

CACV 20/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2003

(ON APPEAL FROM DCEC NO. 858 OF 2001)

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J U D G M E N T

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Hon Woo JA:

Background

1. This is a matter that arose out of a claim made by the applicant for employees' compensation. He met with an accident on 27 October 1999. On 20 October 2001, he made claim in the District Court against the respondent to recover employees' compensation. The answer filed by the respondent on 23 January 2002 disputed that the applicant was employed by the respondent and alleged that the applicant was employed by a named company in the Mainland.

2. On 19 July 2002, Deputy Judge C Wong fixed the date of the trial of the claim to be on 11 September 2002.

3. On 2 August 2002, the respondent paid into court a sum of $330,000. On the same day, the respondent gave notice of payment into court to the applicant's solicitors, stating in the notice that, "the said HK$330,000.00 is in satisfaction of the cause of action in respect of which the applicant claims against the respondent herein." The receipt time chopped on the notice by the applicant's solicitors bore the date and time of 2 August 16.40 hours.

4. By a summons dated 30 August 2002, the respondent applied to the court to adjourn the hearing date fixed for 11 September 2002, on the basis that witnesses in the Mainland had to apply for a two-way permit to come to Hong Kong to give evidence. That application was refused by Judge H C Wong on 3 September 2002.

5. By a letter of 5 September 2002, the applicant's solicitors notified the respondent's solicitors that they had obtained instructions to accept the payment in. In that letter, a summons was enclosed which became the summons issued by the applicant dated 6 September 2002. By that summons, the applicant sought orders from the court that

(1)	judgment be entered against the respondent in favour of the applicant and compensation be assessed and awarded at HK$524,635.70 and RMB136,661.80;
(2)	credit be given to various stated sums in Hong Kong dollars and Renminbi;
(3)	the sum of HK$330,000.00 paid into Court by the respondent on 2 August 2002 be paid out forthwith to the applicant's solicitors, in satisfaction of the balance of the judgment sum, being the difference between the sums referred to in (1) above and (2) above;
(4)	the trial on liability fixed to be heard on 11 September 2002 be vacated;
(5)	the respondent do pay the applicant's costs of the action to be taxed, if not agreed; and
(6)	the applicant's own costs be taxed in accordance with the Legal Aid Regulations.

6. The reason for issuing the summons was given in the letter of 5 September 2002, which stated that in employees' compensation proceedings, the acceptance of the payment in does not entitle the payment out as in common law proceedings. It continued:

"All claims/settlement must be treated as determination of the claim by the Court (S.18A) and a payment in is for coverage of the Respondent's liability for compensation claimed (Rule 20). Thus, all matters have to be dealt with and provided for by the Court."

7. It appears that the terms of the summons regarding the amounts were agreed by the parties. The summons was heard by HH Judge C B Chan on 10 September 2002. The judge ruled that the applicant was entitled to judgment on liability (the "Ruling"). The Ruling is one of the subject matters of the appeal before us.

8. Following the Ruling the judge made the following order on 11 September 2002, which was only perfected on 24 January 2003:

(1)	Judgment be entered against the respondent in favour of the applicant and compensation be assessed and awarded at HK$524,635.70 and RMB136,661.80;
(2)	Credit be given for the sums of
	(a) HK$85,030.70 and RMB136,661.80 for periodical payments received by the applicant;
	(b) HK$109,605.00 being HK$106,420.00 hospitalisation charges paid, HK$3,185.00 being physiotherapy and follow-up medical fees reimbursed to the applicant;
(3)	The sum of HK$330,000.00 paid into court by the respondent on 2 August 2002 be paid out forthwith to Messrs Hobson & Ma on behalf of the applicant in satisfaction of the balance of the Judgment sum herein;
(4)	The trial on liability fixed to be heard on 11 September 2002 at 9:30 am be vacated;
(5)	Costs of the action up to date of payment in by the respondent to the applicant;
(6)	Half of the costs expended by the respondent from the date of payment in to 10 September 2002 be to the respondent, to be taxed, if not agreed; and
(7)	Half of the costs of 11 September 2002 be to the respondent to be taxed, if not agreed; and
(8)	The applicant's own costs to be taxed in accordance with the Legal Aid Regulations.

9. By a letter dated 13 September 2002 sent by the judge's clerk to the parties' solicitors, the court invited the parties to return for further hearing in relation to the application heard on 10 and 11 September 2002, as the judge had been apprised of authorities that threw light on the correctness of the Ruling.

10. On 10 October 2002, the parties appeared before the judge again, but at the hearing the applicant's solicitors for the first time raised objection to the court's rehearing the matter. The judge then gave directions to the parties to file written submissions, limiting the issue solely on jurisdiction to rehear. Accordingly, written submissions were made to the judge by the parties' solicitors. On 3 January 2003, the judge handed down her decision not to rehear the case. The judge also made an order nisi as to costs. On 15 January 2003, the applicant applied to the court to vary the costs order. The present appeal before us also includes an appeal against the decision of 3 January 2003 of the judge for refusing to rehear the case. In view of the appeal, the application to vary the costs order nisi has been adjourned.

The issues

11. Two issues are involved in this appeal, namely,

(1)	whether the District Court, on an acceptance of a payment into court out of time, is entitled to enter judgment against the respondent on liability purely on the basis of his payment in that was accepted, in other words, whether the Ruling was wrong; and
(2)	whether the judge was correct in refusing to rehear the case and reconsider whether the Ruling was correct or otherwise.

The payment in and related rules

12. Rule 20 of the Employees' Compensation Rules ("ECR") provides as follows:

(1) A respondent from whom compensation is claimed may pay into court a sum which is considered by him to be sufficient to cover his liability.

(2) If no greater compensation be awarded than the sum of money which the respondent has paid into court, the court may order that any costs incurred by such respondent, after payment by him into court of the said sum of money, shall be paid by the applicant.

13. There are no further provisions in Rule 20 or any other rule in the ECR to cater for the situation of the applicant's acceptance of the money paid into court pursuant to Rule 20(1).

14. On the other hand, Order 22 of the Rules of the District Court ("RDC") provides a comprehensive procedure relating to payment into court, the time for acceptance, and the consequence of acceptance or otherwise relating to the question of costs. The relevant provisions are as follows:

O 22, r 1(1): "In any action for a debt or damages any defendant may at any time pay into court a sum or sums of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action, a sum or sums of money in satisfaction of any or any of those causes of action."

O 22, r 1(2): "On making any payment into court under this rule, and on increasing any such payment already made, the defendant must give notice thereof in Form No. 23 in Appendix A to the plaintiff and every other defendant (if any); ..."

O 22, r 3(1): "Where money is paid into court under rule 1, then, ..., within 14 days after receipt of the notice of payment or, ... in any case, before the trial or hearing of the action begins, the plaintiff may -

(a) where the money was paid in respect of the cause of action or all the causes of action in respect of which he claims, accept the money in satisfaction of that cause of action or those causes of action, as the case may be; or

(b) ...

by giving notice in Form No. 24 in Appendix A to every defendant to the action."

O 22, r 3(4): "On the plaintiff accepting any money paid into court all further proceedings in the action ..., to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him, shall be stayed."

O 22, r 3(6): "A plaintiff who has accepted any sum paid into court shall, subject to rules 4 and 10 and Order 80, rule 12, be entitled to receive payment of that sum in satisfaction of the cause or causes of action to which the acceptance relates."

15. Until the judgment of this Court in Li Kwok Shing v Law Ka Fu t/a Wing Fai Electrical Engineering & Anr, CACV 212/2002 (21 June 2003), it had been the view generally held by practitioners and judges alike that the RDC relating to payment in and acceptance of payment in had no application to employees' compensation cases. The view was that Rule 20 of the ECR applied to payment into court in employees' compensation cases to the exclusion of provisions of the RDC relating to payment into and out of court.

16. In our judgment in CACV 212/2002, the members of the Court were unanimous that insofar as is not inconsistent or conflicting with the ECR, the RDC apply. Therefore, it has become clear as from the date of our judgment in CACV 212/2002 that where there is a payment into court in employees' compensation cases pursuant to Rule 20(1) of the ECR, the provisions of Order 22 of the RDC, especially those relating to the acceptance of payment in under Order 22 r 3 of the RDC, are effective and applicable. As a result, insofar as the acceptance of the payment in complies with the 14-day period allowed by Order 22, r 3 of the RDC, money paid into court by a respondent (save where a payment in was made under s 13 of the Employees' Compensation Ordinance or where the case involves a person under disability) in respect of an employees' compensation claim can be freely accepted, with the consequence that the applicant can have his costs taxed up to the time of acceptance of the payment in, without any order of the court.

17. In the present case, however, the acceptance of payment in was made known by the applicant's solicitors in their letter of 5 September 2002, beyond the 14-day period as prescribed by Order 22 r 3 of the RDC, which period had expired on 16 August 2002, 14 days after the payment into court on 2 August 2002. Since the acceptance of the payment in took place beyond the 14-day period, the normal practice is for the applicant to make an application to the court for leave for the amount paid in to be paid out, and if the respondent agrees, the application can usually be made by way of a consent summons. See Wong Mei Na v Genryoku Sushi Co Ltd, CACV 82/2003 (16 July 2003, para 14).

Issue (1)

18. In relation to issue (1) of this appeal, the submissions of Mr Clough, for the applicant, can be grouped into two main propositions, namely,

(1)	this Court's decision in CACV 212 of 2002 was per incuriam and should not be followed; thus the payment in must have been made pursuant to Rule 20(1) of the ECR and the RDC do not apply; and
(2)	as the payment in was under Rule 20(1) of the ECR, it must have been based on and amounted to an admission of liability on the part of the respondent and judgment on liability as ordered by the judge was justified.

19. For the first proposition, Mr Clough referred us to the history of the Workmen's Compensation Ordinance before it changed to its present name of the Employees' Compensation Ordinance and in particular, section 17 of the Ordinance that was repealed in 1996. He stressed that the District Court has a supervisory function to perform in all employees' compensation cases and must make a determination and award even if there is a payment into court by the respondent that is accepted by the applicant because the District Court has to be satisfied that the compensation "agreed" by the parties in this manner must be the proper compensation under the relevant provisions of the Ordinance. That is the reason why there is no provision in the ECR about acceptance of the payment into court by the applicant. He relied on s 18A and the repealed s 17 of the Ordinance in support. However, he could not pinpoint any express wording in the Ordinance that the District Court must be satisfied, in all employees' compensation cases before it, that the amount paid in does not fall short of the compensation to which the applicant is entitled under the Ordinance. Without any disrespect to Mr Clough, I am not persuaded that our judgment in CACV 212 of 2002 is per incuriam or wrong. We are bound by that judgment.

20. Mr Clough's second proposition is that if a payment into court is made in an employees' compensation case, it must necessarily be made under Rule 20(1) of the ECR, which specifically refers to "a sum which is considered by" the respondent "to be sufficient to cover his liability." On the face of this wording, any payment into court in an employees' compensation case must constitute a clear admission as to liability. When faced with the question from the bench about the effect of the terms of the notice of payment into court in the present case (identical to those in Form 23 of the RDC) that, "the said HK$330,000.00 is in satisfaction of the cause of action in respect of which the applicant claims against the respondent herein", Mr Clough frankly accepted those terms did not follow the wording of Rule 20(1), and the intention of the respondent in making the payment in became ambiguous.

21. It is only necessary for me to refer to what was said by HH Judge To in Ng Ming Chor v Pui Hing Construction Co Ltd and Ors, DCCJ 496 of 1996 (26 May 1998):

"Rule 20 [of the ECR] is the only rule which covers payments into court in connection with employees' compensation proceedings. Apart from the phrase 'to cover his liability', it is silent as to the effect of the payment in, except as regards costs. Payment into court has been a well established practice. By 1948, a statement as to whether liability was admitted or denied was no longer required. Impliedly, the payment was made without admission of liability. In the words of Devlin, L.J. in A. Martin French v. Kingswood Hill Ltd., [1961] Q.B. 96 'a payment into Court is simply an offer to dispose of the claim on terms. The payment in implies no admission about the merits of the cause of action; there has been no adjudication on it, and therefore no estoppel is created.' The same practice has been imported into the Employees' Compensation Ordinance albeit with the addition of the words 'to cover his liability'. However, I do not consider these words as wide enough to displace the concept of payment without admission of liability which has been associated with the practice for such a long time. In practice the majority of claims for compensation are settled presumably because of compulsory insurance. Very often, these claims are settled without admission of liability. This is to ensure a speedy and costs saving disposal of the compensation claims but without prejudicing the parties' position in relation to the common law claim that sometimes follow. To hold otherwise would require the parties to embark on a course of unnecessary and costly litigation on the issue of liability, even though the parties have no dispute on quantum and are consent [sic] to pay and to receive the compensation. Had it been the intention that payment into court includes an admission of liability, it would have been more expressly provided in the rule. In the circumstances, I consider payment into court under Rule 20 has the same effect as a payment under Order 22. The payment does not imply an admission of liability."

22. I agree entirely with the passage cited above. Moreover, the judge obviously made a mistake when she said in the Ruling that

"Hence, upon acceptance of payment in, as liability is not in dispute, the applicant is entitled to judgment on liability and on compensation in respect of the sum paid into court."

Liability was in dispute and that was the reason why the parties before her argued on the terms upon which the money paid in should be paid out, whether there should be a judgment on liability. I am of the view that the judge had erred in making the Ruling.

Issue (2)

23. Subsequent to the Ruling, the judge had been apprised of the judgment of Judge To cited above and the judgment of HH Judge Li in Li Kwok Shing v Law Ka Fu and Anr which was the judgment subsequently reversed (on the issue of the applicability of the RDC) in CACV 212/2002 referred to above. Those two District Judges' judgments were mentioned in the judge's decision of 3 January 2003. In that decision, she also mentioned that she had handed down her ruling in another employees' compensation case in DCEC 367 of 2001 on 17 September 2002. In that case, obviously influenced by the said judgments of Judge To and Judge Li, she ruled that Rule 20(1) could not be so read that payment into court necessarily implied an admission of liability. However, she referred to a number of authorities regarding whether she should reopen the matter for the purpose of reversing the Ruling. She came to the conclusion that she should not do so for the following express reasons:

(1)	the strong opposition of the applicant's solicitor to a rehearing; and
(2)	although the Ruling seemed to her to be wrong according to principles of law, it was not so plain and obvious an error that it would not be one requiring argument.

24. Mr Lim, for the respondent, refers us to Noga v AG of Federal Republic of Nigeria [2001] 3 All ER 513 and Stewart v Engel [2000] 3 All ER 518 in support of his submission that the judge erred in failing to rehear the parties on the merits of the Ruling and that she should have reheard the matter and reversed the Ruling.

25. In Noga, the holding in the headnote summarises Rix LJ's view on the subject, as follows:

"The court's jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interests of justice, which were out of ordinary, extraordinary or exceptional. An exceptional case did not have to be uniquely special, and 'strong reasons' was perhaps an acceptable alternative to 'exceptional circumstances'. It would necessarily be in an exceptional case that strong reasons were shown for reconsideration. In the instant case, there were no such reasons. It was a case where it was said that the judge had got it wrong, on points which had been argued. The appeal process would be subverted if the application were granted. There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal. It was wrong, however, for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided: it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits. Accordingly, the application to reconsider the judgment would be dismissed (see [41], [43]-[45], [47] and [48] of the judgment)."

26. In Stewart v Engel, the Court of Appeal held that a judge had the power to reconsider his conclusion and reverse his own decision. It also held that the existence of exceptional circumstances was a pre-requisite for the exercise of the jurisdiction.

27. In her decision of 3 January 2003 refusing to reopen the matter, the judge referred to the two cases of Noga and Stewart v Engel and many other cases on the subject. She cited Re St Nazaise Co [1879] 12 Ch D 88, re Harrison's Settlement [1955] Ch 260, Hong Kong Civil Procedure 2002 Vol 1 paras 42/1/3 and 32/6/14 and Wong Kam Hong t/a Continental Knitting Factory v Triangle Motors Ltd, HCA 7781/95 for the law that there is jurisdiction for a court to reconsider and rehear the matter before the order is perfected.

28. She also referred to re Harrison's Settlement, Lam Kam Tai v United Soundfair Engineering Co Ltd, HCPI No. 436 of 1995 (14 May 1999), re Barrell Enterprises [1973] 1 WLR 19 CA, and Bastow v Bagley Co Ltd [1981] 1 WLR 1494, as to the jurisdiction to reopen and reverse an order that has not been perfected, and as to how the jurisdiction should be exercised. Re Barrell Enterprises is the authority for the legal proposition that save in the most exceptional circumstances a matter could not be reopened where oral judgment had been given even though the order had not been passed and entered. The jurisdiction must be exercised judicially and not capriciously. In re Blenheim Leisure (Restaurants) Ltd (No. 3), November 1999, TLR 755, it was held that it was undesirable for a court to be asked to reconsider an earlier decision unless there were strong reasons for doing so. Examples of strong reasons included a plain mistake on the part of the court, a failure of the parties to draw to the court's attention a fact or point of law that was plainly relevant, or discovery of new facts subsequent to the judgment being given. These were said not to be exhaustive.

29. Those authorities also discussed the advantage and disadvantage of reopening a decision, in that on the one hand there must be certainty and finality of a court's decision, though orally pronounced and not yet perfected, while on the other hand, where justice demands and an appeal can be averted by a judge reopening his order and reversing it if it is plain that he was wrong, so as to save the expenses of an appeal.

30. The judge concluded that because of the strong opposition of the applicant's solicitor for a rehearing of the matter and the error in the Ruling was not so plain and obvious as rendering arguments unnecessary, she refused to reopen the matter. Before us, Mr Lim argues that in view of the judgment of Judge To in Ng Ming Chor and the judge's own ruling in DCEC 367 of 2001 on 17 September 2002, the Ruling that the applicant was entitled to judgment on liability upon acceptance of the payment in must be a plain and obvious error which the judge ought to have corrected. I agree.

31. In her writing decision of 3 January 2003, the judge at various places said:

"3. ... Having had more time to reflect on my earlier Ruling on the 10 September 2002 in this case, I was not satisfied with the correctness of that Ruling. ... The judgment of HH Judge To was directly on the point. Having had time to consider the authorities submitted by respective solicitors, I handed down my Ruling in DCEC 367 of 2001 on 17 September 2002. I ruled therein that Rule 20(1) cannot be read in the way as submitted by the Applicant's solicitor that payment into court necessarily implies an admission of liability."

"10. ... As referred to earlier on that occasion [in DCEC 367 of 2001] that I could not stand by my ruling delivered on 10 September 2002 in this application on the same issues with the same arguments advanced on behalf of the Applicant as that advanced on the 10 September 2002 by the Applicant's solicitor. Having considered further the principle that for judgment to be entered on admission, such admission must be clear and unambiguous (marginal note 27/3/1 Hong Kong Civil Procedure 2002 Vol. 1 page 462), I came to the conclusion that the wording of Rule 20(1) which states that a respondent could pay into court a sum which is considered by him to be sufficient to cover his liability, is not worded in such clear and unambiguous language as to make clear that payment-in implies admission of liability."

"11. My ruling on the 17th September 2002 in DCEC 367 of 2001 has had the benefit of further authorities submitted by the respective solicitors and further consideration. It was in terms that are entirely inconsistent with the Ruling on the 10 September 2002, which could no longer view as correct."

32. It is therefore plain that she considered that the Ruling was wrong. She made an opposite ruling in DCEC 367 of 2002 several days after the Ruling was delivered. All this is contrary to her stated reason for her refusal to rehear the case that "The Ruling ... though it seems to me to be wrong according to principles of law, is not so plain and obvious an error that it would not be one requiring argument." Her other stated reason for refusing to rehear the case was the strong opposition of the applicant's solicitor. If that was the case, I am of the opinion that it merely showed the unreasonableness of the solicitor's attitude, for she was the same person who represented the applicant in DCEC 367 of 2002 who requested the judge to enter judgment on liability but failed. Since the solicitor failed in her opposition in DCEC 367 of 2002, there was no reason why the judge should be hesitant despite the solicitor's strenuous opposition to rehearing the present case on the same point. In such a case, I consider that it would only be proper for the judge to rehear the case and reverse the Ruling, and let the applicant appeal if he thinks fit. The applicant would have to take into consideration the chances of success and the consequence of an adverse costs order, if he chooses to appeal.

33. I therefore come to the conclusion that the judge should have exercised her jurisdiction to reopen the Ruling, rehear the parties and reverse the Ruling. I would allow the appeal against her decision of 3 January 2003.

Respondent's notice

34. There is a Respondent's Notice raised by the applicant to justify the judgment in the court below against the respondent on liability, on the basis of admissions contained in various documents. In view of what is stated below, it is unnecessary for me to enumerate those documents or the admissions allegedly contained in them. The summons dated 6 September 2002 only sought judgment to be entered against the respondent in favour of the applicant and compensation be assessed and awarded at the two sums set out above. This was an attempt to avoid incurring further costs that might be ordered against the applicant pursuant to Rule 20(2) of the ECR. The basis for the judgment sought was clearly the implied admission of liability allegedly made by the respondent by the payment in. The transcripts of the hearings before the judge show that when the solicitor for the applicant attempted to raise admissions contained in various documents before the judge, the judge refused to hear her on such admissions and limited the argument to the admission implied by the payment in. In my view, the Ruling of 10 September 2002 was based simply on the payment in and it is not open for the applicant to raise the admissions now alleged to be contained in various documents in an attempt to support of the Ruling. The Respondent's Notice, in my judgment, raises matters that were not allowed by the judge to be argued, and should not be treated as at all relevant to the decision of this Court on the appeal against the Ruling.

Conclusion

35. For the above reasons, I would allow the appeal against the Ruling and the decision.

36. Paragraphs (1), (2) and (3) of the judge's order made on 11 September 2002 (set out in para 8 above), based on the Ruling, should be set aside. In substitution, I would make the following orders:

"	(1)	The applicant do have leave to accept the sum of $330,000 paid into court by the respondent on 2 August 2002.
	(2)	The money mentioned in (1) above be paid out forthwith to Messrs Hobson & Ma on behalf of the applicant.
	(3)	All further proceedings in the case be stayed."

Paragraphs (4), (5), (6), (7) and (8) of the judge's order should remain unchanged.

Costs

37. Despite Mr Lim's arguments, I am not persuaded that the judge's orders for costs in paragraphs (5) to (8) of her order of 11 September 2002 should be altered.

38. As we have heard the parties on costs, and I would make the following order as to costs:

(1)	The respondent do have the costs of this appeal.
(2)	The respondent do have the costs (thrown away) of the partial rehearing that resulted in the judge's decision of 3 January 2003.
(3)	The applicant's own costs of this appeal be taxed in accordance with the Legal Aid Regulations.

39. The applicant is legally aided. Normally, the Director of Legal has a first charge on the sum recovered by the applicant against the costs incurred for this appeal. This appeal concerns pure law, and has nothing to do with the amount of money that the applicant should receive from the payment in that he had accepted. We were informed by Mr Clough that the applicant had been fully apprised of the consequence of a costs order in the event that this appeal was allowed, including the risk that the $330,000 would be decreased or exhausted by such costs, and that notwithstanding the applicant agreed to this appeal being opposed. The applicant's purpose, so we were told, was to sustain the judgment on liability against the respondent for demonstrating to the authorities in the Mainland that he was an employee. I am not persuaded that the opposition to this appeal was the applicant's own doing. I am of the view that, in all the circumstances, it would be unfair for the sum recovered by the applicant to be reduced by the costs of this appeal. I would make an order (as the Court did in Wong Mei Na) to the effect that the respondent's costs and the applicant's own costs of this appeal are not to be deducted from the $330,000 unless an application is made by the Director of Legal Aid to this Court with notice to the applicant; such application, if at all, must be made within 14 days of the date of this judgment.

Hon Cheung JA:

40. I agree.

Hon Burrell J:

41. I agree.