WONG SING FUNG v. FUNG MING STAINLESS ENGINEERING CO LTD

IN THE COURT OF APPEAL

1987, No.123
(Civil)

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JUDGMENT

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Kempster, J.A.:

1. This is an appeal by Mr. WONG Sing-fung, an employee who was injured at work on 25th September 1984, from the order as to costs made by Judge Tung on 5th August of this year after the re-trial, limited to quantum, of his claim to be compensated by his employers Fung Ming Stainless Engineering Co. Ltd. pursuant to the provisions of the Employees Compensation Ordinance Cap.282. The earlier history of the matter is set out in the judgment of this court in Civil Appeal No. 76 of 1986 (unreported).

2. The judge awarded Mr. Wong $11,089 with interest from the date of the accident until and including 6th of May 1986 being the last day of the first trial. Although entitled so to do by direction of the Court of Appeal he made no order in relation to the cost of that trial which therefore fell to be borne by the respective parties. He awarded the employers the costs of the retrial with a certificate for counsel. Mr. Wong contends that he should have been awarded the costs of the first if not of the second trial.

3. An initial question arises as to whether or not Mr. Wong is entitled to come to this court as an appellant without the leave of the District Court or of this court. It is contended that he has an unfettered right so to do having regard to the provisions of s.23 of the Employees Compensation Ordinance. On the other hand the terms of s.14(3)(e) of the Supreme Court Ordinance suggest otherwise. It is in my view unnecessary for us to determine the question. I accept that this is a proper case in which to grant leave to appeal if it be necessary and to treat the present hearing as the hearing of the appeal. I would take that course.

4. It is now necessary to set out the material chronology. On 26th September 1985 the issue of liability was decided in Mr. Wong's favour. I now call him the appellant. On 5th Hay 1986 pursuant to r.20 of the Employees Compensation (Rules of Court) Rules the employers paid $11,040 into court. The following day the first trial began and, I think, concluded. But Deputy Judge Shum reserved judgment until 13th May when he assessed the compensation payable by the employers at the figure of $114,920 together with interest.

5. On 5th November 1986 this court ordered a retrial.

6. On 9th February this year the employers paid a further $13,584 into court so that there was then available for the appellant's acceptance $24,624 in all. He elected, however, to seek a greater award. The retrial commenced on 18th February and concluded, after various adjournments; on 6th July. It had taken six days to hear evidence on both sides. Then on 3rd August judgment was given assessing the proper figure for compensation and the order which is the subject of appeal made as to costs.

7. The costs of both assessments were in the discretion of the judge. That is provided by reading together s.21 of the Employees Compensation Ordinance, ss.48 and 72 of the District Court Ordinance and s.52A of the Supreme Court Ordinance. So the questions falling for our decision are whether or not there was material upon which the judge could properly so exercise his discretion as to award the costs of the second hearing to the employers and to make no order as to the costs of the first hearing and whether it has been demonstrated to us that he erred in law, took into account some factor that he should not have taken into account or omitted to give weight to some factor that he should have taken into account.

8. The judge gave no express reasons for his determination but the considerations which were canvassed before him in argument make it clear beyond a peradventure that he took the view that not only had the appellant grossly inflated his claim at both hearings but in so doing had been guilty of a degree of mendacity which can be categorised as misconduct.

9. In such circumstances a court or tribunal is entitled to deprive a successful party of his costs. In a sense the appellant was a successful party because in the final analysis he recovered a little more than had in the first instance been paid in by his employers. As against that he had put them to considerable expanse in a long hearing based, it would appear, on false evidence and deception. I would find that the judge had material upon which he could properly exercise his discretion as to costs in the way that he did and that there are no grounds upon which that exercise can be faulted. Accordingly I would dismiss the appeal.

Cons, V.-P.:

10. I agree with my Lord’s conclusion both as to leave and as to the appeal itself. Any doubts that I may have entertained earlier with regard to the order in respect of the first hearing have been removed by reference to Baylis Baxter Ltd. v. Sabath1. The judgments of Jenkins & Parker L.JJ., with which Pearce L.J. agreed, made it quite clear that, when considering what award of costs to make with regard to a successful plaintiff, the judge may take into account the misconduct of the plaintiff with regard to those proceedings. In the present circumstances there was ample matter before the judge below upon which he could properly have exercised his discretion in the way that he did.

Clough; J.A.:

11. I agree with both the judgments which have just been delivered.