Lam Pui Yi Anita v. Secretary for Justice

DCEC844/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 844 OF 2001

____________

BETWEEN

____________

Before: Her Honour District Judge Marlene Ng in Chambers (Open to Public).

Date of Hearing: 2^nd August, 2005.

Date of Handing Down Decision: 18^th August, 2005.

_______________

D E C I S I O N

_______________

Introduction

1.The Applicant (“AP”) claims for employees’ compensation against the Respondent (“R”) in respect of an accident on 25^th October 1999 that she says arose out of and in the course of his employment with R.

2.On 25^th April 2005, AP filed a Notice of Confirmation of Appeal (“Notice”) as follows :

“TAKE NOTICE that [AP] herein confirms that the Application filed herein on 17th October 2001 includes all applications for compensation under Section(s) 9, 10 and 10A (if applicable) and/or other relevant sections (including without limitations an appeal or appeals or application(s) under Section 18) of the Employees’ Compensation Ordinance, Cap.282, (“the said Ordinance”) and interest and costs.

If the Honourable Court considers appropriate and/or necessary, this notice also serves as a notice of appeal under section 18 of the said Ordinance in respect of the Certificate of Review of Assessment dated 2nd September 2003.”

3.AP applies by summons dated 3^rd June 2005 (“Summons”) to strike out Notice on the ground that it is frivolous, vexatious and an abuse of process of the court pursuant to Order 18 rule 19 of the Rules of the District Court (“RDC”) and under the court’s inherent jurisdiction.

Background

4.Both Mr Shu, solicitor for AP, and Mr Lam, solicitor for R, confirm that the factual matters in the parties’ respective affirmations are not disputed. It is useful to first set out the background.

5.AP’s Application was issued on 17^th October 2001 (“Application”). AP in paragraph 2 therein prayed for “[compensation] under Section(s) 9, 10 and 10A (if applicable) and/or other relevant sections of the Ordinance and interest and costs” (“Relief Sought”). R filed an Answer on 3^rd January 2002 pleading inter alia that “…… Paragraph 2 of Application is not admitted”.

6.The Certificate of Assessment (Form 7) (“AP’s Form 7”) was issued on 24^th December 2002 and certified that (a) AP’s loss of earning capacity was 10.5% and (b) her sick leave period covered various periods between 25^th October 1999 and 4^th October 2002. Both parties objected to the assessments in AP’s Form 7.

7.By a consent application dated 28^th July 2003 (“Consent Application”), the parties agreed to inter alia the following directions :

(a)	the parties do file and serve upon each other a list of documents within 14 days from the date of the order to be made therein and there be inspection within 7 days thereafter;
(b)	where any party intended to place reliance on medical evidence at trial, that party shall, if not already done so, within 60 days from the date of the order to be made therein, do file and serve the substance of that evidence to the other party in the form of written report(s), which shall be mutually exchanged and agreed if possible;
(c)	unless the medical expert evidence were agreed, the parties shall be at liberty to call as medical expert witnesses those witnesses the substance of whose evidence have been disclosed as aforesaid.

The agreed directions in sub-paragraphs (b) and (c) above are called “Expert Directions”. Expert Directions were made the subject of the Order of Deputy Judge M Wong dated 30^th July 2003 (“Order”).

8.AP and R filed their respective List of Documents on 13^th and 29^th August 2003.

9.The Certificate of Review of Assessment (Form 9) (“AP’s Form 9”) was issued on 2^nd September 2003. The assessments took place on 13^th May, 11^th June and 19^th August 2003, which suggested (and both solicitors agreed) that Consent Application was made after the parties lodged their objections to AP’s Form 7 but before the issuance of AP’s Form 9. AP’s Form 9 certified AP’s loss of earning capacity to be 12% (an increase of 1.5% from the assessment in Form 7) but the sick leave period remained the same.

10.On 16^th September 2003, AP filed/served a bundle of medical reports including those of the treating hospitals/doctors, Dr David Fang (AP’s orthopaedic expert) and Dr K Singer (AP’s psychiatric expert). Dr Fang opined that the assessment of any permanent orthopaedic disability should take place 3 years from the injury (ie in October 2002). Dr Singer opined inter alia that AP’s loss of earning capacity from the psychiatric perspective was 30% before treatment and 15% after treatment.

11.On 18^th September 2003, AP’s solicitors served a copy of AP’s Form 9 on R’s solicitors under cover of their letter (“Objection Letter”) and stated as follows : “[please] note that [AP] objects to the assessment of loss of earning capacity permanently caused by the injury of 12% and her Application herein also constitutes an appeal against this assessment. Our client considers that the percentage should be higher than 12%”. Objection Letter has not been filed with or copied to the court.

12.On 26^th September 2003, AP’s solicitors wrote to R’s solicitors to enquire as to the date/time for mutual exchange of witness statements pursuant to Order. R’s solicitors did not respond.

13.AP had also commenced common law proceedings in respect of the same accident against inter alia AP in HCPI No.924/2002 (“HC Action”). At that time, R and AP (respectively the 1^st defendant and the plaintiff in HC Action) were involved in preparing expert medical evidence. The joint medical report of Dr David Fang (for AP), Dr Louis Hsu (for R) and Dr Jack Wong (for the 2^nd defendant in HC Action) (“Orthopaedic Experts”) was completed on 27^th October 2003.

14.On 3^rd March 2004, Master B Kwan ordered inter alia that the parties to HC Action do file and serve a Revised Statement of Damages and Answer thereto. Leave was also granted to AP to set down HC Action for trial upon compliance of all directions given.

15.AP filed her 2^nd List of Documents in the present proceedings on 6^th September 2004 for discovery of AP’s Form 9 and medical reports from the government hospitals and from Dr Singer.

16.Orthopaedic Experts’ revised joint supplementary report was completed on 8^th October 2004. On 29^th November 2004, Dr David Fang confirmed that his assessment of AP’s loss of earning capacity from the orthopaedic perspective was 7.5%, which assessment was accepted by Dr Louis Hsu, R’s orthopaedic expert in HC Action.

17.On 8^th February 2005, AP filed the two joint reports by Orthopaedic Experts as well as Dr David Fang’s report of 29^th November 2004 for the present proceedings.

18.Since the time imposed by Order for the exchange of witness statements in the present proceedings had elapsed, AP’s solicitors wrote to R’s solicitors on 8^th February 2005 to enquire as to when the witness statements could be exchanged. On 28^th February 2005, R’s solicitors replied by saying that HC Action had progressed to a more advanced stage and suggesting that the present proceedings be stayed.

19.AP filed and served the Revised Statement of Damages in HC Action on 14^th March 2005.

20.On 11^th April 2005, AP filed her witness statement in the present proceedings. Her witness statement did not say whether she was satisfied with the assessments in AP’s Form 9 or not. On the same day, AP’s solicitors wrote to R’s solicitors to say that AP was entitled to pursue her employees’ compensation claim independently of HC Action. AP’s solicitors went on to say that since R appeared to be uninterested in exchanging witness statements, they had proceeded to file AP’s witness statement on that day. They therefore served a copy of the same to R’s solicitors, warning that if they did not receive R’s witness statements within the following 14 days, R would be deemed to have agreed not to adduce factual evidence from witnesses at the trial.

21.Upon revisiting the present proceedings, R’s solicitors took the view that expert medical evidence was not required because AP had not appealed against the assessments in AP’s Form 9. On 13^th April 2005, R’s solicitors wrote to inform AP’s solicitors of their stance and to object to AP’s unilateral imposition of a deadline for service of R’s witness statements. They suggested that AP should have applied to the court for fresh directions for service of witness statements and medical reports out of time.

22.R filed Notice on 25^th April 2005.

23.AP’s solicitors in their letter to R’s solicitors of 26^th April 2005 claimed that the filing, service and/or mutual exchange of witness statements and expert medical evidence did not require further leave of the court in light of Order. They also objected to any stay of the present proceedings and disagreed that expert medical evidence was unnecessary in the absence of appeal against AP’s Form 9“…… in view of the wide jurisdictions and powers conferred on the Honourable Court under the Employees’ Compensation Ordinance, Cap.282 [“Ordinance”], including without limitations Sections 18 and 18A thereof. Further, [AP’s Application] has already made application for, inter alia, compensation under Section(s) 9, 10 and 10A (if applicable) and/or other relevant sections of [Ordinance]. There is no provisions in [Ordinance] providing that an appeal under Section 18 thereof should be made by way of a separate Notice of Appeal in the circumstances. However, as [R] is mindful of the filing of a Notice of Appeal, [AP’s solicitors] now send [R’s solicitors] herewith by way of service a copy of [Notice] filed herein on 25^th April 2005 for [their] record”.

24.R’s solicitors wrote to AP’s solicitors on 28^th April 2005 inter alia inviting them to withdraw Notice. On 4^th May 2005, AP’s solicitors wrote to R’s solicitors stating as follows :

(a)	To save costs, it was unnecessary to file a separate appeal against the assessments in AP’s Form 9.
(b)	The joint medical reports should be adduced as agreed evidence without oral evidence from the makers in order to save time and costs.
(c)	R’s solicitors were invited to agree to Dr Singer’s expert psychiatric report.
(d)	If necessary, an application to extend time within which to appeal under section 18 of Ordinance (“Section 18”) could be conveniently made at the directions hearing to be restored for the purpose of seeking an order for setting down the present proceedings for trial. R’s striking out application could be dealt with at the same time to save time and costs.
(e)	R was requested to confirm whether she would adduce oral evidence as to fact and/or compensation at trial.

25.By their letter of 9^th May 2005 to R, AP’s solicitors enquired inter alia as to when R would serve the Answer to AP’s Revised Statement of Damages (“HC Answer”) in HC Action. R replied on 11^th May 2005 inter alia that more time was required to look into AP’s claims in HC Action and she would inform AP’s solicitors shortly as to when she would file HC Answer. AP’s solicitors chased for HC Answer by their letter dated 31^st May 2005. R replied on 1^st June 2005 that she needed another 28 days for preparing HC Answer. HC Answer was eventually filed on 30^th June 2005. But further leave of the court was required before AP could set HC Action down for trial.

Preliminary matters

26.Mr Shu submits that it is AP’s primary stance that she has already initiated an appeal against the assessments in AP’s Form 9 within the appeal period. However, in case I am not with him, Mr Shu orally applied at the hearing that alternatively leave should be given for AP to appeal against the assessments in AP’s Form 9 out of time pursuant to section 18(2) of Ordinance. Mr Lam very fairly took no issue over the absence of a formal application.

27.Mr Lam informs me at the outset of the hearing that it is not R’s wish to stand on technicalities. If AP is prepared to withdraw Notice (subject to argument on the question of costs), R is prepared to agree that leave be granted to AP to appeal against the assessments in AP’s Form 9 out of time. It appears from R’s open offer that irrespective whether I accept Mr Shu’s contentions as to the status of Notice or not, AP will be able to appeal against the assessments in AP’s Form 9. I therefore stood down the hearing for the parties to consider this turn of events and to see whether a practical solution can be achieved. I am mindful that both parties are litigating on public funds (ie AP is legally aided). However, the exercise was unfruitful and R’s Summons proceeded to substantive argument.

The law

28.Section 18 provides inter alia as follows :

“	(1)	Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA.
	(2)	No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be.
		Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.
		……”

29.Order 18 rule 19(1) of RDC provides inter alia as follows :

“	The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –
		……
	(b)	it is scandalous, frivolous and vexatious; or
		……
	(c)	it is otherwise an abuse of the process of the Court,
	and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

Jurisdiction

30.Mr Shu suggests it is jurisdictionally improper for R to issue the present application under Order 18 rule 19 of RDC. It is true that Order 1 rule 2(2A) of RDC provides that RDC shall not have effect in relation to proceedings for the recovery of employees’ compensation and in respect of which rules are made under section 50 of Ordinance. However, Woo JA in Li Kwok Shing v Law Ka Fu trading as Wing Fai Electrical Engineering & anor CACV No.212/2002 (unreported, 21^st June 2003) held as follows :

“…… I consider that the proper interpretation is that a particular rule of the RDC only has no effect on EC claims so long as it conflicts with one or more rules of the ECR [ie Employees’ Compensation (Rules of Court) Rules (“ECR”)] made under s 50 of the ECO. ……” (para.26)

“If O 1, r 2(2A) is construed in the manner as contended for by Ms Remedios [namely, that as ECR have been made pursuant to s 50 of the ECO, O 1 r 2(2A) of the RDC expressly disapplies the RDC to EC claims dealt with in the District Court], it would result in the entirety of RDC not being applicable to EC claims. I consider that this is not a proper construction, for it would be contrary to the express applicability of the RDC provided for in s 21(1) of the ECO in terms that “the law, rules and practice relating to such civil actions … of the Court shall mutatis mutandis apply”. (para.27)

I accept that RDC are applicable to employees’ compensation cases in the manner described in Li Kwok Shing (supra).

31.Is Order 18 rule 19 of RDC applicable? Mr Shu has not referred me to any provision in ECR that conflicts with and hence disapplies Order 18 rule 19 of RDC. But he submits that Notice is not a “pleading” or “indorsement” and R does not ask for “the action be stayed or dismissed or judgment to be entered accordingly” within the meaning of Order 18 rule 19(1) of RDC. However, I notice that Notice purports to be a confirmation of an existing appeal against the assessments in AP’s Form 9 as well as alternatively a notice of appeal itself under Section 18. On such alternative basis, Notice purports to be a primary originating application to the District Court.

32.Ma JA (as he then was) in Li Kwok Shing’s case (supra) held that employees’ compensation cases were neither actions for debt or damages. Yet he found Order 22 of RDC to be applicable to employees’ compensation cases even though that order only applied to an “action for debt or damages”. He held that “…… RDC Order 22 is made applicable to EC proceedings because section 21 of the ECO expressly makes applicable the “rules and practice” of the District Court relating to civil actions to EC claims “mutatis mutandis”. One must, therefore, adapt the words “debt or damages” in RDC Order 22 rule 1(1) to cover EC claims.” Although Woo JA differed slightly from the aforesaid reasoning, Cheung JA agreed with both the judgment of Woo JA and the judgment of Ma JA (as he then was). I respectfully agree with the aforesaid views of Ma JA (as he then was). I am of the view that Order 18 rule 19 of RDC should apply mutatis mutandis to employees’ compensation claims and the originating applications thereunder.

33.Even if I am wrong and Order 18 rule 19 of RDC is inapplicable to the present situation, I note that R also relies on the inherent jurisdiction of the court to restrain abuse of its process and obviously frivolous or vexatious proceedings. Such inherent jurisdiction is separate to that which exists under Order 18 rule 19 of RDC (Hong Kong Civil Procedure 2004 Vol.1 para.18/19/12 at p.321). Mr Shu doubts whether the District Court has such inherent jurisdiction and further suggests that the present situation does not fall within any of the illustrations referred to the above-cited passage in the learned text. However, the Court of Final Appeal has confirmed that the District Court has such inherent jurisdiction (see Ng Yat Chi v Max Share Limited & anor [2005] 1 HKLRD 473, 513, where Ribeiro PJ said “[the] District Court equally has an inherent jurisdiction to protect its process against abuse ……”). It is also plain that the illustrations cited in the learned text are not exhaustive. Indeed,Hong Kong Civil Procedure 2004 (supra) para.18/19/10 at p.320 said that “[the] categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interest of justice may be very material”.

34.“The expression “frivolous or vexatious” includes proceedings which are an abuse of the process …… A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides” (Hong Kong Civil Procedure 2004 (supra) para.18/19/8 at p.318). The learned text at para.18/19/10 at pp.319-320 further says inter alia that “…… the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery, and will, in a proper case ……, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation ……”.

35.In my view, this court has jurisdiction to deal with R’s present application by Summons.

Discussion

36.It is R’s case that AP has not initiated/filed any or any proper appeal against the assessments in AP’s Form 9 within the prescribed appeal period of 6 months under Section 18. AP contends otherwise. I am not with AP or Mr Shu in their contentions.

(a) Nature and mode of an appeal against Form 7 and/or Form 9

37.Mr Shu submits that an appeal under Section 18 is not an ordinary appeal but an administrative appeal/application that requires consideration de novo on a matter of substance and not of form (Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115). Mr Lam does not dispute such principle.

38.Hunter JA in Chan Kit (supra at pp.117-118) explained the nature of an appeal under Section 18 against the scheme of Ordinance as follows :

“Pausing here, the scheme of the ordinance up to this point is to seek to arrive at an administrative solution to claims of this nature. Quite an elaborate structure is established, starting with the Commissioner, then either an ordinary or a special assessment board under ss 16D and 16; and then with review procedures, either at the instance of the party under s 16G or on the board’s motion under s 16GA. The plain intention is that these procedures will be final and accepted by the parties ……Plainly therefore, the intent is that the assessments are to be final unless appealed within a limited period of time …… So that one has provision of primary assessment, an appeal within a limited period of time; and then a general provision entitling the court to agree or disagree or substitute its own figures on an appeal.

…… Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh ……”

39.Hunter JA also acknowledged that although Ordinance provided for a prescribed form and manner for the employee to enforce his claim for compensation (section 18A of Ordinance), the employee was not required by the rules to state grounds for an appeal against the earlier assessment or review. The words that the applicant in that case added by way of “appeal” were an addition of his own to the section 18A form for the assistance of the parties (p.119 of the judgment). Mr Shu therefore submits there is no need to expressly use the word “appeal” and it is sufficient if all the relevant documents and circumstances show that AP has in substance initiated or set in motion an appeal against the assessments in AP’s Form 9.

40.Mr Shu further submits that this approach is supported by the judgment of Bokhary JA (as he then was) in Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, 60 as follows :

“The jurisdiction of the District Court in a s 18 appeal includes determining the amount of compensation payable and making such order in respect thereof, including an order as to costs, as it thinks fit. That enables the District Court to make an enforceable order for compensation. That no form has been prescribed for launching an appeal for that purpose does not defeat that purpose. The District Court has procedural power, as an inherent feature of its jurisdiction under s 18, to allow an appeal to be brought before it under that section in any way which, as a matter of substance, duly invokes such jurisdiction. By ‘duly’ I mean plainly and with proper service on the other side.” (my emphasis)

41.Although the use of the word “appeal” may not be necessary, the above authorities make clear that the District Court’s jurisdiction to deal with an appeal against the assessments in Form 7 or Form 9 under Section 18 must be duly and plainly invoked by the intended “appellant”. How is such jurisdiction under Section 18 invoked? Mr Lam submits that the proper method of appeal is either by (a) lodging an appeal to the District Court within 6 months of the date of issue of Form 7 and/or Form 9 or (b) including in the section 18A proceedings an appeal or an application to appeal out of time (collectively, “Options”).

42.In Ng Ming Cheong v Mass Transit Raiway Corporation CACV No.131/1997 (unreported, 24^th October 1997), the Certificate of Assessment issued by the Ordinary Assessment Board was made approximately 6 months after the date of the employee’s application for employees’ compensation. The employer did not lodge any appeal to the District Court against the assessment nor did it make any application for leave to appeal out of time against the assessment. Le Pichon J (as she then was) in delivering the judgment of the Court of Appeal said as follows :

“Section 18 therefore “has provision for primary assessment, an appeal within a limited period of time; and then a general provision entitling the Court to agree or disagree or substitute its own figures on a hearing.” See per Hunter J.A. in Chan Kit v. Sum Wo Industrial Manufactory [1989] 2 HKLR 230 at 232F.

…… [The District Court] is also the forum to hear an appeal against the assessment of the Ordinary or Special Assessment Boards where either party is dissatisfied with it. Where liability is disputed, an employee may lodge a claim for compensation under section 18A of the Ordinance. Where the assessment is in dispute, this can be challenged by way of appeal under section 18. It can also be included in the section 18A proceedings by adding an appeal or application to appeal out of time against the assessment in the Application for compensation. ……”

43.Mr Shu argues that Options are not mandatory but merely illustrations of how an appeal under Section 18 can be instituted. Since neither Ordinance nor the Court of Appeal in Ng Ming Cheong (supra) says Options are exhaustive, Mr Shu suggests that the methods for invoking the District Court’s jurisdiction under Section 18 are not closed. He further reminds that Kempster JA said in Chan Kit (supra at p.121) that the procedure envisaged by Ordinance appears to be one involving a degree of informality.

44.In my view, where a party intends to appeal against the assessments in Form 7 or Form 9 pursuant to Section 18, it is incumbent on such party to duly and plainly invoke the District Court’s jurisdiction. This is primarily important because unless such jurisdiction is duly and plainly invoked, the assessments in Form 7 or Form 9 remain binding. Further, the other party is entitled under the rules of natural justice to know clearly and plainly whether he has to meet an appeal against the assessments in Form 7 or Form 9.

45.Although there is no prescribed form for such appeal, the party invoking the court’s jurisdiction under Section 18 must notify the court and inform the other party about the appeal in clear, certain and unambiguous terms. The court or the other party should not be left to guess on ambiguous terms or equivocal conduct as to whether there is in truth an appeal or not. In this regard, I respectfully agree with the views of Bokhary JA (as he then was) in Chung Lung Shun (supra) referred to in paragraph 40 above. I think it will be a very rare case for a Section 18 appeal to be made in a manner other than those outlined by Le Pichon J (as she then was) in Ng Ming Cheong (supra).

(b) Statutory appeal period for AP’s Form 7 and Form 9

46.The statutory deadline for any appeal under Section 18 against the assessments in Form 7 or Form 9 is “6 months from …… the date of issue of the relevant certificate ……” This means that the statutory appeal period against AP’s Form 7 is between 24^th December 2002 and 23^rd June 2003 and that of AP’s Form 9 is between 2^nd September 2003 and 1^st March 2004. The above echoes item 2 of the “IMPORTANT NOTE” at the bottom of AP’s Form 7 and Form 9 which states as follows : ”[under] Section 18(1) and (2), an appeal against this assessment may be made to the District Court within 6 months from the date of issue of this Certificate”. Such Important Note serves as a reminder to AP and/or her solicitors of the relevant appeal period.

47.It is with the above principles in mind that I now turn to the facts of the present case. Mr Shu in his written submissions says that the court upon consideration of “the steps and events which have happened and [R’s] conduct” will realise that AP has already invoked the court’s jurisdiction under Section 18 in respect of the assessments in AP’s Form 7 or Form 9. In his oral submissions at the hearing, Mr Shu submits that such appeal is constituted by looking at a number of documents.

(c) Application and Relief Sought

48.In the present proceedings, Application has been issued well before the dates of issue of AP’s Form 7 and Form 9. It is all along AP’s stance that Application and Relief Sought constitute an appeal against the assessments in AP’s Form 9 (see Objection Letter and the letters from AP’s solicitors to R’s solicitors dated 26^th April and 4^th May 2005). Indeed, Notice on its face suggests that Relief Sought constitutes an appeal against the assessments in AP’s Form 9. Mr Shu emphasises in his written submissions that Relief Sought is sufficiently widely worded to be so read.

49.But if Relief Sought is said to constitute an appeal against the assessments in AP’s Form 9 (or even in AP’s Form 7), Mr Lam asks rhetorically how AP could have lodged such appeal in October 2001 when AP’s Form 7 and Form 9 only came into existence 1 to 2 years later. Such argument does not sit well with the aforesaid statutory appeal period. Further, if such argument is upheld, any party can easily circumvent the built-in time limit by either including such appeal in an application for employees’ compensation or lodging a separate notice of appeal long before Form 7 or Form 9 comes into existence.  In my view, this cannot be right.

50.Mr Shu is therefore constrained to concede during his oral submissions at the hearing that Application and Relief Sought do not of themselves constitute an appeal against AP’s Form 7 or Form 9. This is inevitable given the views of Bokhary JA (as he then was) in Chung Lung Shun (supra) as follows :

“It is also against the spirit of s 14(1), which sets its face against 24 months of inactivity. Section 18 appeals are not preceded by inactivity. By definition, appeals are preceded by some activity sincethere must be something to appeal from. As one sees from s 18(1), there must be some decision or assessment to appeal from …… And as one sees from s 18(2) there is six months from the date of a decision or the issuance of a certificate of assessment within which to launch an appeal against such decision or certificate.” (my emphasis)

51.I therefore find that the statutory period for appeal against the assessments in AP’s Form 7 or Form 9 did not commence until their respective dates of issuance. Relief Sought in Application cannot constitute such an appeal and there is nothing to be confirmed by way of Notice.

52.Mr Lam further submits that Relief Sought (which does not even mention Section 18 or Form 7 or Form 9) is too ambiguous, non-specific and obviously too wide to constitute any proper appeal against the assessments in AP’s Form 7 or Form 9. I agree. Neither the court nor R should be left to guess which “relevant section of the Ordinance” AP intends invoke or to speculate whether AP intends to appeal against the assessments in AP’s Form 7 or Form 9. Relief Sought does not “plainly” or “duly” invoke the jurisdiction of the District Court under Section 18 and there is consequently nothing to confirm by way of Notice.

53.In the circumstances, the first paragraph of Notice is liable to be struck out as frivolous or an abuse of the process of the court.

(d) Consent Application and Order

54.Mr Shu submits that R by agreeing to Expert Directions (which became part of Order) has plainly acknowledged the existence of an appeal against the assessments in AP’s Form 7. He argues that had there not been such appeal, the expert medical evidence would have been redundant.

55.However, by the time Consent Application and Order were made, both parties have already lodged their objections to AP’s Form 7. The review was under progress and AP’s Form 9 was still pending. In such circumstances, it is not surprising that both parties agreed to Expert Directions pending the results of AP’s Form 9. Mr Shu submits that R should have waited until the issuance of AP’s Form 9 before agreeing to Expert Directions. Given the aforesaid context (where both parties and not just one party objected to AP’s Form 7), I do not think either party should be criticised for agreeing to Expert Directions at that stage. In any event, Mr Shu does not suggest that any acquiescence, estoppel or waiver arises as a result of Consent Application and Order.

56.Further, as discussed above, an appeal against the assessments in Form 7 or Form 9 should be “plainly” and “duly” lodged with the court and served on the other party. It should not be the subject of implicit or ambiguous inferences from conduct that is open to interpretation or query. I therefore do not agree that Consent Application and Order plainly constitute an appeal against the assessments in AP’s Form 7. Even if it does, this is not what AP asserts in Notice, hence Notice is still not sustainable.

57.Alternatively, if Consent Application and Order amount to an appeal under Section 18 (which I disagree), such appeal is at best an appeal against the assessments in AP’s Form 7 and not those in AP’s Form 9 (which certificate was not yet in existence in July 2003). AP’s Form 7 has been cancelled upon the issuance of AP’s Form 9 in accordance with section 16G(4) of Ordinance. Consequently any appeal against AP’s Form 7 is spent and Expert Directions will become redundant unless AP and/or R chooses to and does appeal against the assessments in AP’s Form 9 within the 6-months’ appeal period commencing on 2^nd September 2003. If there is no such appeal against the assessments in AP’s Form 9 within the prescribed appeal period, such assessments are binding and Expert Directions will become irrelevant. As will be seen from the discussion below, there has been no such appeal.

(e) Objection Letter

58.Mr Lam submits and I agree that Objection Letter does not amount to a proper appeal against the assessments in AP’s Form 9. Even though AP has by such letter notified R that she was not satisfied with the assessments in AP’s Form 9, Objection Letter has never been sent to or filed with the court. It cannot constitute an appeal that “lie[s] to the District Court”.

(f) AP’s Lists of Documents and expert medical evidence

59.Mr Shu next submits that by virtue of (a) AP’s List of Document filed on 13^th August 2003 and her 2^nd List of Documents filed on 6^th September 2004 which set out the medical reports from the government hospitals and the expert medical reports from Orthopaedic Experts and Dr Singer in Part 1 of Schedule 1 therein, and (b) AP’s orthopaedic and psychiatric expert medical reports filed and served in September 2003 and February 2005 pursuant to Order (albeit out of time), it must be clear to the court and R that AP intends to rely on expert medical evidence at the trial, which in turn must mean that AP has already initiated an appeal against the assessments in AP’s Form 9.

60.I do not see how any court will be able to discern that AP has initiated an appeal against the assessments in AP’s Form 9 simply from the filing of lists of documents and expert medical evidence. Rather, the reasoning should be the other way around. If no appeal has been made in a plain manner that duly invokes the court’s jurisdiction under Section 18, the assessments are binding irrespective of the purported “appellant’s” intention to adduce expert medical evidence. Indeed, in Ng Ming Cheong (supra), the applicant went so far as to actually lead expert medical evidence at the trial. But since there is no Section 18 appeal, Le Pichon J (as she then was) said at para.25 of the judgment as follows :

“ In our judgment, the judge ought not to have entertained any expert evidence at the trial which took place some 11 months after the date of the Certificate in circumstances where the Respondent had chosen not to appeal during the six month period, or to apply for leave to appeal out of time prior to the hearing. The only evidence before him as to quantum should have been the Certificate and nothing more. ……”

I see no merit in Mr Shu’s submissions in this respect.

61.I reiterate that a party lodging an appeal under Section 18 must do so in a plain manner and there is no burden on the court or the other party to review all the documents or investigate into all the circumstances to conclude whether there is or is not an appeal. If there is no plain appeal (made within the prescribed appeal period or any extended period granted by the court) that duly invokes the court’s jurisdiction under Section 18, expert medical evidence (even if it has been filed and served) cannot be adduced at the trial to challenge the binding assessments in Form 7 or Form 9.

62.I further note that Notice does not say AP’s Lists of Documents or expert medical reports constitute any Section 18 appeal against the assessments in AP’s Form 9. Hence the filing and service of those documents do not support the propriety of Notice.

(g) Notice

63.Since Relief Sought does not amount to any proper appeal against the assessments in AP’s Form 9, there is no ground for the suggestion in Notice that Application constitutes an existing Section 18 appeal. Further, the confirmatory nature of Notice is meaningless. Had a proper appeal been made under Section 18, its validity and propriety stand or fall on its own without the aid of any subsequent confirmation. Had there been no such appeal, there is simply nothing to confirm and Notice cannot cure such nullity. I am of the view that Notice is a self-serving document that adds nothing further to the situation. Mr Shu has not referred me to any provision, whether statutory or otherwise, which suggests Notice is a form known to or necessary for employees’ compensation claims. In the circumstances, the first paragraph of Notice has no foundation, serves no meaningful purpose and is therefore frivolous.

64.AP should have within the prescribed appeal period either applied to amend Application to seek an appeal against the assessments in AP’s Form 9 or issued a separate notice of appeal for such purpose. Since AP has not done neither step within the prescribed time, AP should have applied for leave to do so out of time. However, although AP in the second paragraph of Notice purports alternatively to appeal against the assessments in AP’s Form 9, she does not apply for leave to do so out of time. Since such purported notice of appeal (dated 25^th April 2005) falls more than a year outside the prescribed appeal period which expired on 1^st March 2004, such purported appeal is not permissible under Section 18 and is bound to fail. In my view, it is liable to be struck out as being frivolous, ie it cannot possibly succeed.

(h) Totality of the evidence

65.Mr Shu submits that it is necessary to look at the whole of the documents and circumstances. However, having considered the totality of the matters raised by Mr Shu, I find that AP has not even begun to establish a case that it has lodged any appeal against the assessments in AP’s Form 9 within the prescribed appeal period.

66.Mr Shu submits that AP has not filed a separate notice of appeal in order to save costs. I cannot accept such submission. Since Chan Kit’s case (supra) makes clear that no grounds of appeal are required to be stated, a Section 18 appeal does not have to be anything more than a simple and plain statement of AP’s appeal against the assessments in AP’s Form 9 filed and served within the prescribed appeal period. I cannot envisage it to be more complicated or costly than either Objection Letter or Notice which AP has chosen to file and/or serve instead.

67.Mr Shu suggests that R’s real objective in taking out Summons is to delay the present proceedings, to bar AP from making an appeal and to force AP to accept the assessments in AP’s Form 9. He complains against the injustice of such approach. He further illustrates the unreasonableness of R’s stance by referring to HC Answer wherein R has only conceded that AP’s common law loss and damages should be in the region of HK$230,000.00 and by saying that AP has not been able to set HC Action down for trial.

68.Such argument is without merit. Mr Lam has made clear at the outset of the hearing before me that R does not object to leave being granted for AP to appeal against the assessments in AP’s Form 9 out of time if she so wishes. I further do not see how the quantum of common law damages is pertinent to the present employees’ compensation claim that does not turn on the issue of negligence or other fault. It also appears that the reason why HC Action has not been set down for trial is not because any further step is presently outstanding but because previous leave to set down for trial granted by Master B Kwan on 3^rd March 2004 has expired and a fresh application is required for setting down HC Action for trial in the running list.

69.In my view, AP has not made any proper appeal against the assessments in AP’s Form 9 at all. Plainly, Notice was filed and served in a desperate attempt purporting to regularise the omission to lodge the Section 18 appeal within time. It falls far short of what is required to establish a Section 18 appeal. As a confirmation of a purported appeal, it is meaningless and redundant. As a purported appeal itself, it is manifestly out of time. Notice is unsustainable and frivolous. In purporting to confirm an appeal which has in fact not been made, it is also an abuse of process. I have no hesitation in striking out Notice.

Conclusion

70.I therefore order that Notice be struck out on the ground that it is frivolous and an abuse of the process of the court. I further order that leave be granted to AP to appeal against the assessments in AP’s Form 9 out of time and that AP do file and serve a notice of appeal thereof within 7 days from the date of this decision.

71.There is no reason why costs should not follow event. I make a costs order nisi that AP do pay R costs of Summons (including all costs reserved in respect of Summons, if any) to be taxed if not agreed.

72.AP is on legal aid. In my view, AP should have accepted R’s fair open offer made at the beginning of the hearing for leave to be granted to AP to appeal against the assessments in AP’s Form 9 out of time, leaving the question of costs to be argued. I have also allowed time for the parties to consider their respective positions in light of R’s offer. I need not and do not speculate as to the reason why full argument of Summons was necessary. Suffice to say that R’s offer was not accepted and Mr Shu proceeded to oppose Summons on the basis that Notice was valid and proper. Since Mr Shu informs me his understanding is that AP all along intends to appeal against the assessments in AP’s Form 9, Summons raises case management issues. I do not consider that I should at this stage award any costs order nisi for legal aid taxation of AP’s own costs. I therefore make the following directions :

(a)	AP’s solicitors do (i) within 14 days from the date hereof and (ii) on written notice to the Director of Legal Aid of this Decision and my order herein, liaise with my clerk to fix a hearing before me in chambers (open to the public) with 30 minutes reserved to address whether legal aid taxation of AP’s own costs should be ordered (“AP’s Costs Issue”);
(b)	leave be granted to the Director of Legal Aid to attend the said hearing to address on AP’s Costs Issue;
(c)	R’s attendance is excused for the said hearing on AP’s Costs Issue.

Practice note

73.I note that it has become a common practice for practitioners to include in employees’ compensation claims the following prayer of relief in section 18A applications or in the answers, namely, an appeal against the Certificate of Assessment and/or Certificate of Review of Assessment “if necessary”, “if any”, “if so advised” and/or “if appropriate”. Where such prayer of relief is included in the application or the answer, the court and the other party are at a loss to understand whether there is or is not going to be an appeal under Section 18. Sometimes much time and costs are wasted by the other party in addressing the possibility of an appeal when at the end of the day the pleader does not find it necessary, appropriate or advisable to appeal. Even worse, such prayer of relief is sometimes included in the section 18A application or answer even before the Certificate of Assessment or Certificate of Review Assessment comes into existence.

74.In my view, practitioners should desist from using such boilerplate prayer of relief for it serves no useful purpose. It does not tell the court or the other party whether there is an appeal or not and as such it does not plainly or duly invoke the court’s jurisdiction under Section 18. If it is made before the relevant Certificate(s) come into existence, it is invalid and has no meaning. An appeal under Section 18 is not to be made lightly and should be a considered decision having regard to the relevant circumstances. Such considered decision cannot be reached unless and until the relevant Certificate is to hand and hence Ordinance specifies a statutory time period for appeal that commences on “the date of issue of the relevant certificate”.

Mr David Shu of Messrs Poon, Sum & Cheng for the Applicant.

Mr Allen Lam of Messrs Liu, Chan & Lam for the Respondent.