Chan Sau Mui and Another v. To Cheong Lam

HCA 7415/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7415 OF 1995

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BETWEEN

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Coram :  Before Master Roy Yu in Chambers

Date of Hearing : 23 May 2006 and 24 May 2006

Date of Handing Down Ruling : 4 July 2006

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RULING ON PRELIMINARY ISSUE

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1.A Bill has been presented by Messrs. Wong, Hui and Co., solicitors for the 1^st and 2^nd Plaintiffs to tax the costs awarded under a number of orders herein in favour of both Plaintiffs against the Defendant.  When the bill was issued, the 1^st Plaintiff had passed away and Messrs. Wong, Hui and Co. acted upon the instruction of the 2^nd Plaintiff and the Director of Legal Aid (“the Director”).

2.At the material times, the 1^st Plaintiff was legally aided.  Since the 1^st Plaintiff had passed away before the bill was issued, Messrs. Wong, Hui and Co. could not have instruction from the 1^st Plaintiff to issue the bill.  A preliminary point was raised on the right of the Director of Legal Aid to issue proceedings to enforce a costs order in favour of an aided person against another party in the proceedings.  This ruling is not to affect the position of the 2^nd Plaintiff who has every right to instruct Messrs. Wong, Hui and Co. to tax the cost orders.

3.The Director relied on Regulation 9(6A) of the Legal Aid Regulations which reads –

“The Director has the right to enforce an order for costs in favour of an aided person made in proceedings for which the Director has issued a certificate, whether the certificate has been discharged or revoked, and the Director may bring proceedings in his official name in a court of competent jurisdiction to recover the costs ordered.”

And the Chinese version reads –

“凡署長就法律程序發出證書，則不論該證書是否已被取消或撤回，署長有權強制執行在該法律程序中作出並判令受助人獲得訟費的命令，而署長可以其官方名義在具有司法管轄權的法院中提出法律程序，以追討所判的訟費。”

4.The Director argues that in order to enforce an order for costs, he has to proceed to tax the costs.  Hence, the word “enforce” must include the power for the Director to take out taxation proceedings in the name of the aided person.

5.The difficult word in this sub-section is the word “enforce”.  For enforcement of an order, it is an execution under Order 45 or other similar proceedings.  But the word “enforce” could have a wider meaning than execution.  One would enforce a Bill of Exchange by presentation of the bill.  In hire purchase action, enforce the possession right would mean some active steps to recover possession of the property (Mercantile Credit Co. v. Cross  [1965] 2 Q.B. 205).  Hence, there is room for argument that to enforce a cost order would include taking proceedings to tax the order and to levy execution thereafter. 

6.The difficulty is with the Chinese version of the section, when the term “強制執行” is being used.  This term is used in Order 45 to means enforcement by execution or the means therein set out.  This is not a commonly used Chinese term.  And it could not have the meaning of taking out taxation as a prelude to enforcement proceeding.

7.It is obvious that the Chinese version of the section has a narrower meaning than the English version.  Section 10B(3) of the Interpretation and General Clauses Ordinance 19 provides:

“Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”

8.When the English and Chinese versions cannot reconcile with each in all context, the true meaning of the word in any particular statute must be construed from the context in which it was used and the object of the enactment.  In the case of re Madam L, HCMP2042/05, Mr. Justice Lam on having found that the Chinese version has a narrower meaning from the same term in the English version, said –

“I believe that the correct approach is to recognize that the English version properly construed in its context bears a different meaning from that of the Chinese version.  Starting from that premises, we come to the task of reconciliation.  It is somewhat like the situation of repugnancy within the same piece of legislation referred to in Section 160 of Bennion, Statutory Interpretation, 4^th Edn.  The interpreter of the legislation has to arrive at a combined meaning of the enactments and that combined meaning may be inconsistent with the literal meaning of one version of the enactment under inquiry.”

9.I would follow the judgment of Mr. Justice Lam and in interpreting the said Regulation, I would look for the meaning that best reconcile the situation.

10.As I found earlier on, the word “enforce” could has a wider meaning than execution.  The Director has a direct interest in the cost order as any money recover would be paid to the Director and subject to the Director’s first charge.  The legislative intention of the section must be to allow the Director to be subrogated to all the right and power of the aided person in respect of enforcing the cost order, and if necessary, to institute proceedings in his official title to enforce the cost order.  The purpose of this section must be to empower the Director to take all steps necessary to recover costs in the absence of any assistance from the aided person, and must include the right to have the order taxed in order to proceed on with execution.  A liberal interpretation of the word “enforce” should be adopted and the section would allow the Director to take out proceedings for taxation as a means to ascertain the amount that could be recovered from the paying party. 

11.Having concluded that the Director has the statutory power to tax the costs order, I have to consider further the procedure on how the Director may tax the order.  In most cases, the taxation is carried out in the name of the aided person, with his express or implied consent.  Alternatively, the Director may institute proceedings including application for taxation in his official title.

12.I have to note that in this case, the Director has not instituted proceedings in his official title.  The bill was allegedly taken out by the 1^st Plaintiff with the 2^nd Plaintiff.  Since the aided person had passed away and he could not authorize the Director or Messrs. Wong, Hui and Co. (his former solicitors) to institute the taxation proceedings.  Then, procedural-wise, Messrs. Wong, Hui and Co. could not proceed with the bill on behalf of the 1^st Plaintiff.

13.It is for the Director to seek the consent from the relative of the 1^st Plaintiff to continue these proceedings and to make the proper application for appointing someone to represent the estate under O.15 of the Rules of High Court.  The alternative remedy would be for the Director to institute fresh proceeding in his official title to tax the bill as provided in Regulation 9(6A).

14.Hence, while I found that the section provides the Director with the power to enforce the cost order, if taxation were proceeded in the name of the aided person, such proceeding could not continue when the aided person had passed away.  Leave under O.15 should first be obtained before the bill of costs could be taxed.  In the circumstance, the taxation of the bill of the 1^st Plaintiff shall be adjourned sine die with liberty to restore.  This would not affect the bill (which is the same one) issued by the 2^nd Plaintiff.

15.I reserve the matter of cost for argument.  The parties should consult each other.  The matter may be argued at the resumed taxation, or if necessary, they should fix a short hearing for say 30 minutes before me.

Mr. A. Tsui and Mr. J. Fisher (Costs Clerk) of Messrs. K. Y. Lo & Co. for the Defendant.

Mr. S. Lau (Law Costs Draftsman) instructed by Messrs. Wong, Hui & Co. for the Plaintiffs.

Mr. E. Chan (Law Clerk) of the Legal Aid Department.