Chung Chun Wah v. J.V. Fitness Ltd

DCEC 682/2016

[2021] HKDC 1301

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 682 OF 2016

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DECISION

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Introduction

1.The Assessment of Compensation for this action was handed down on 27 August 2021.  In this Decision, I shall adopt the same abbreviations used in the Assessment of Compensation.

2.In the Assessment of Compensation, I have assessed the amount of compensation at HK$498,930.13[1], and I have ordered that the same should be fully set-off from the HK$513,657.59 received by Mr Chung as advanced payment.  The advanced payment comprised of periodical payment (total sum of HK$510,067.59 from February to September 2015) and medical expenses (total sum of HK$3,590 for the same period).

3.At §240 of the Assessment of Compensation, I noted that Mr Ho (counsel for J.V.), when setting-off the assessed compensation with the advanced payment in his closing submissions, had set-off the advanced payment only with the compensation to be awarded under section 10 (the same amount I have come up with in §233 of the Assessment of Compensation), disregarding that there is a surplus of HK$70,851.27 after doing so.  As Mr Ho did not in his closing submissions explained the rationale behind such approach, I refused to follow it.

The application

4.Shortly after the Assessment of Compensation was handed down, Mr Ho through his instructing solicitors, Messrs Au & Associates, sent to this court a letter dated 30 August 2021 (“Mr Ho’s Letter”), under which the case of Kan Wai Ming v Hong Kong Airport Services Ltd[2]was drawn to my attention.  In it, Fok JA (as Fok PJ then was) held at §32 of the judgment that: -

“I therefore agree with the submission (made in para. 19 of the respondent’s skeleton argument) that the intention of the Legislature in enacting s. 10(4) of the Ordinance is so that an employee’s compensation for temporary incapacity under s. 9 should be kept separate and distinct, and that in case an employee is entitled to both, they cannot be set off against each other. In my view, the construction urged on us would run contrary to the Ordinance’s purpose of providing for discrete types of compensation each to be separately assessed.”

5.In light of this authority, Mr Ho submitted that the periodical payment of HK$510,067.59 paid in advance to Mr Chung should only be used to set-off the sum awarded under section 10, notwithstanding there being a surplus.  The sum of HK$50,932.80 awarded under section 9 should be left unaffected by this.  As to the sum awarded under section 10A, it should be set-off with the medical expenses of HK$3,590 paid by J.V. in advance, with a balance of HK$1,765.  Hence a sum of HK$52,697.80 shall be receivable by Mr Chung.

6.Since Mr Ho’s Letter, I have also received a letter dated 24 September 2021 from Mr Szeto (counsel for Mr Chung) via his instructing solicitors Messrs Or & Partners, expressing his total agreement with Mr Ho on the above.

7.Suffice it to say I also agree with Mr Ho after perusing the Kan Wai Ming case.

8.What remains is how this court could rectify the problem.  Mr Ho urged for rehearing of the case and reconsidering my ruling in §§239-240 of the Assessment of Compensation on the court’s jurisdiction.[3]  In support, Mr Ho referred me to the case of Sun Jianqiang v Trans-Island Limousine Service Ltd.[4]  I agree that the present warrant a rehearing and variation of my ruling in the said paragraphs: -

(1)     There is strong reason for this court to adopt such approach, as Mr Ho had previously failed to draw to the court’s attention a point of law that was plainly relevant, and there was a plain mistake on the part of the court.

(2)     An appeal can be averted by reopening and reversing my ruling in line with the Kan Wai Ming case.

(3)     The Assessment of Compensation has not been sealed and the order has not been perfected.

Conclusion

9.For the reasons above, I make the following orders:-

(1)     There be rehearing of my ruling under §§239-240 of the Assessment of Compensation.

(2)     There be variation of my ruling under §§239-240 to the effect that Mr Chung shall be awarded the sum of HK$52,697.80.

(3)     Interest shall accrue on this sum at half judgment rate from the date of the Accident (i.e. 11 January 2015) up to the date of judgment, and thereafter at judgment rate until payment in full.

(4)     With the agreement of the parties, there be no order as to costs of this rehearing application.

10.In spite of the said variation, I do not find it justifiable to vary the costs order nisi I made under §241 of the Assessment of Compensation, as J.V. remains largely successful in resisting Mr Chung’s claim.[5]  I shall therefore maintain the same costs order nisi that Mr Chung shall bear the costs of J V, including all costs previously reserved (if any), with certificate for counsel, to be taxed if not agreed.  Unless any party applies to vary the costs order nisi within 14 days from the date of this Decision, the same shall become absolute.

11.Finally, I express my gratitude to Mr Ho and Mr Szeto for their assistance.

Mr Patrick Szeto, instructed by Or & Partners, assigned by the Director of Legal Aid, for the applicant

Mr Leon Ho, instructed by Au & Associates, for the respondent