Chan Wai Yin v. Wong Sau Ping Ada t/a Evergreen Transportation Co
Read the full judgment text of DCEC 97/2004 on BabelCite. This District Court judgment.
1. The background of this application is set out in my decision made on 6 th September 2006 (“ Order ”) and my Reasons for Decision handed down on 11 th September 2006 (“ Reasons ”). For the sake of convenience, I propose to adopt the abbreviations in the Reasons.
Cites 4 cases
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DCEC97/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO . 97 OF 2004 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in chambers (open to the public) Date of Hearing: 22nd November 2006 Date of Handing Down Decision: 24th November 2006 ------------------------ D E C I S I O N ------------------------ Background 1.The background of this application is set out in my decision made on 6th September 2006 (“Order”) and my Reasons for Decision handed down on 11th September 2006 (“Reasons”). For the sake of convenience, I propose to adopt the abbreviations in the Reasons. 2.Briefly, the Applicant was/is legally aided and Mr Ng was the assigned solicitor. The Director of Legal Aid (“Director”) did not assign any counsel to act in these proceedings. However, Mr Ng and/or the Firm briefed the 1st to 4th Counsel (who were not on the legal aid panel) to attend the 1st to 4th Hearings respectively, the 1st Hearing being the return day of an inter partes summons and the 2nd to 4th Hearings being usual Friday call-over hearings for employees’ compensation cases. No prior notice was given to the Director by Mr Ng and/or the Firm for instructing the 1st to 4th Counsel to appear at the 1st to 4th Hearings respectively, but the 1st to 4th Counsel were informed that the Applicant in these proceedings was legally aided. 3.At the requests of the 1st to 3rd Counsel at the 1st to 3rd Hearings respectively, the court granted orders that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations (although the issue of costs of the 3rd Hearing in relation to the Applicant’s ex parte application for substituted service of the Application was reserved). However, it transpired at the 4th Hearing before me that no legal aid certificate had been issued for assigning the 2nd to 4th Counsel to act in these proceedings. 4.So at the 4th Hearing I directed the Firm to notify the Director in writing of the attendance of counsel and of the orders made at the 2nd to 4th Hearings, and adjourned for argument the issue of taxation of the Applicant’s own costs in relation to the 3rd and 4th Hearings, including the costs of instructing counsel. 5.Subsequently, the Firm notified the Director of the circumstances of the 2nd to 4th Hearings as directed. At the adjourned hearing before me on 6th September 2006 (“6/9/06 Hearing”), I informed Ms Chuah who appeared on behalf of the Director that the 1st Counsel had also been instructed to appear on behalf of the Applicant at the 1st Hearing. 6.After hearing submissions from Ms Chuah and from Mr Chiu, then counsel for Mr Ng, at the 6/9/06 Hearing, I made the Order as follows :
7.As apparent from the transcript of the 6/9/06 Hearing, both the Director and Mr Ng/the Firm had no dispute over the terms of the above Order. Indeed, Mr Ng and the Firm through Mr Chiu made clear at the 6/9/06 Hearing they would not seek any legal aid taxation of counsel’s costs and/or costs incurred by the Firm of and occasioned by instructing counsel in relation to the 1st to 4th Hearings. 8.At the 6/9/06 Hearing, I also made the following interlocutory directions (“Directions”) :
The summons 9.Mr Ng and the Firm are now represented by solicitors. On 17th October 2006, Mr Ng and the Firm through their solicitors issued a summons (“Summons”) under the inherent jurisdiction and Order 58 rule 2 of the Rules of the District Court for the following reliefs :
10.The Summons was served on the Director as well as the 1st to 4th Counsel. At the Adjourned Hearing before me on 22nd November 2006, the Director was again represented by Ms Chuah. The 1st, 3rd and 4th Counsel also attended the hearing, but the 2nd Counsel was absent. I am informed by Mr Clarke, solicitor appearing for Mr Ng and the Firm, that the 2nd Counsel had been notified of and invited to attend the Adjourned Hearing. 11.Two affirmations by Mr Ng dated 17th October and 20th November 2006 (“1st and 2nd Affirmations”) were filed in support of the Summons. 12.I was informed by Mr Clarke that Mr Ng and/or the Firm would not seek to overturn the terms of my Order set out in paragraph 6 above or of my Directions (which were essentially directions to facilitate bringing up the Adjourned Hearing) set out in paragraph 8 above although Mr Clarke took the view that the Order and the Directions were unnecessary. I note Mr Ng stated in paragraphs 13 and 14 of the 1st Affirmation that he had made good his promise that counsel’s fees and the costs of instructing counsel would be entirely for the Firm’s account and that he had taken steps to restore the Adjourned Hearing before me. 13.Instead, I was informed by Mr Clarke that Mr Ng and the Firm sought the following reliefs :
Reconsideration jurisdiction : the law 14.Mr Ng admitted in the 1st Affirmation that it was for the purpose of re-opening the Order and re-hearing the matter giving rise thereto that he refrained from sealing the Order. Mr Clarke argued that since the Order had not been drawn up or perfected, it was open for this court to recall the Order/Reasons for rectification or making consequential alterations. 15.I have no doubt that until the Order has been perfected, this court retains control over the Order and the Reasons, and can permit argument to be re-opened which may result in modification or reversal of the decision which has already been made. Rather, the issue is how the discretion should be exercised. 16.Mr Clarke referred me to Wong Kam Hong v Triangle Motors Ltd [1998] 2 HKC 219. In that case, the plaintiff issued a summons seeking leave to re-amend the writ and to amend the statement of claim so as to substitute the name of the plaintiff’s principal in its place. The master dismissed the summons on the ground that there was no supporting affidavit. The plaintiff then issued a second summons in identical terms supported by affidavit. The Registrar granted the order sought in the second summons. The defendant appealed on the ground that the Registrar had no jurisdiction to make the order when the earlier identical summons had been dismissed. Cheung J (as he then was) held that subject to the exceptions in Order 14 and contempt of court proceedings, where a summons was dismissed whether on procedural grounds or on merits, the dissatisfied party should appeal against that decision and not issue a fresh summons on the same subject matter. The Registrar had no jurisdiction to hear the second summons, so the order made was set aside. 17.Cheung J (as he then was) made the following obiter comments at pp.223-224 :
18.It is on the basis of such obiter opinion that Mr Clarke argued that I have jurisdiction to re-open and re-consider the merits of the Reasons and that I should exercise my discretion to do so. 19.Since the learned judge’s obiter comments were premised on In re Harrison’s Share under a Settlement, Harrison v Harrison, Re Ropner’s Settlement Trusts, Ropner v Ropner [1955] 1 Ch 260, it is necessary not only to examine that case, but to consider how it was viewed by subsequent authorities. Mr Clarke did not refer to the Harrison case or any of the authorities referred to below. However, I have provided opportunity to Mr Clarke and Ms Chuah to consider them at the hearing. 20.In the Harrison case, the judge made an order approving a variation of trust and a few days later the House of Lords gave a decision that showed there was no jurisdiction for the judge to do what he did, so he recalled the order before it had been drawn up. Jenkins LJ said at p.276 as follows :
The learned judge went on to say at pp.283-284 as follows :
21.In Noga v Abacha [2001] 3 All ER 513, 524, Rix LJ sitting at first instance reviewed the Harrison case. He noted that the variation of trust was doomed and it was wrong to put the parties to the cost of appeal to reverse the decision, so “…… there was no need for the Court of Appeal to discuss the question of whether the jurisdiction to reconsider would only be exercised in exceptional cases.” But the reality was that the Harrison case involved “circumstances of a wholly exceptional character” (per Russell LJ in Re Barrell Enterprises [1972] 3 All ER 631, 637). Indeed, as explained in Charlesworth v Relay Roads Ltd & ors [2000] 1 WLR 230, 234, the new fact in question in the Harrison case was incontrovertible, a point of law, indeed of jurisdiction, and it was plainly not available at the date the original judgment had been given. 22.The English Court of Appeal accepted the existence of the reconsideration jurisdiction in Re Barrell Enterprises, but Russell LJ delivering the judgment of the court said at p.636 that “[when] oral judgments have been given, either in a court of the first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present” (my emphasis). 23.Stewart v Engel [2000] 3 All ER 518, a case after the introduction of the Civil Procedure Rules, held that a judge’s power to reconsider his conclusion and in effect reverse his own decision before completion of the formal recording of his decision existed before the introduction of the Civil Procedure Rules and there was nothing in the new code abrogating it. 24.Sir Christopher Slade who gave the leading judgment of the majority held that such jurisdiction (which he referred to succinctly as the Barrell jurisdiction), if very cautiously and sparingly exercised, served a useful purpose (pp.523-524), a view echoed by Roch LJ at p.540. 25.Sir Christopher Slade adopted the helpful examples of cases where the Barrell jurisdiction might justifiably be invoked before the order in question was drawn up given by Neuberger J in Re Blenheim Leisure (Restaurants) Ltd (No 3) (1999) Times, 9 November :
Mr Clarke submitted that two of the above examples were of relevance in the present case, namely, failure of the parties to draw the court’s attention to a fact or point of law that was plainly relevant, and discovery of new facts subsequent to the judgment being given. I will return to these contentions below. 26.Sir Christopher Slade went on to say at p.524 that “[it] is to be observed that in all these instances, if the court had no power to reconsider its order before it was drawn up, the only remedy open to the party prejudiced would be by way of appeal from the order …… common sense suggests that in such cases the judge who made the order should himself have the power to vary it before the appeal procedure has to be set in motion, with the likelihood of exposing all parties to far greater expense and delay than an application to the court of first instance.” 27.But Sir Christopher Slade also recognised that “only in the most exceptional circumstances can it be proper for a judge to exercise his discretion under the relevant jurisdiction to vary a previous order of his once such order has been made” (p.525). Roch LJ also agreed at p.542 that the court should require the party seeking to reopen the judgment to demonstrate that it was an exceptional case or that there were strong reasons for doing so. 28.In Noga v Abacha, Rix LJ held that the Barrell jurisdiction could only be exercised in a case which raised considerations, in the interests of justice, which were out of the 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. The Harrison case and Stewart v Engel were cited with approval and Rix LJ specifically disagreed with the concept that the discretion was a wide open one, unrestricted by the requirement of exceptional circumstances (pp.525-526). 29.In Noga v Abacha Rix LJ handed down a reserved judgment after a lengthy trial. The applicant claimed that in the course of his judgment Rix LJ misapplied the parol evidence rules in disregard of binding authorities and that his decision was flawed as a result. In short, the argument was that the learned judge got it wrong on points which had been argued. On the applicant’s attempt to re-open its case, Rix LJ held that the applicant had ample time and opportunity to address the matter at the trial or to request permission to deal with it in writing after the trial. The applicant chose not to cite authorities on the subject at the trial, but Rix LJ on his own initiative referred to two relevant authorities in his judgment. The points which the applicant sought to raise were those covered by competing submissions at trial, albeit without the aid of the authorities which the applicant subsequently brought into play and without the refinement of analysis which it then sought to deploy. 30.Rix LJ considered the appeal process would be subverted if the application to reconsider the judgment was granted. He accepted 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 is, in my judgment, wrong 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.” (p.528) 31.The above principles have been applied in two local authorities. Deputy High Court Judge Carlson in Bill Chao Keh Lung v Don Xia alias Xiaodong HCA9289/2000 (unreported, 3rd October 2002) followed the Harrison case, Stewart v Engel, Re Blenheim Leisure (Restaurants) Ltd (No 3) and Noga v Abacha. 32.In that case, the learned judge was asked to reconsider his judgment after trial on two aspects. First, there was undisputed evidence that the plaintiff had already paid US$60,000.00 on account and the learned judge had no difficulty in rectifying a clear oversight on his part to give the plaintiff credit for such sum. It was the sort of situation contemplated by the “slip rule”. Secondly, the plaintiff argued that because the judgment was silent as to a particular claim which formed part of the prayer in the statement of claim and its subsequently amended forms, the learned judge should make some pronouncement on that matter. The learned judge held as follows :
33.Although Mr Clarke had no submissions to make on whether the Barrell jurisdiction should only be exercised when there were exceptional circumstances or strong reasons and limited himself to the contention that the present case fell within the examples in Re Blenheim Leisure (Restaurants) Ltd (No 3), he adopted the discussions in Chao v Don. 34.In Wing Tai Plastic & Metal Factory Limited v Ka Luen Toys Manufactory Limited HCA386/2006 (unreported, 26th October 2006), Deputy High Court Judge Carlson was prepared to deal with the outstanding issue of costs in the action under the slip rule, but refused to substantially re-visit his earlier order (which had not been perfected) at the plaintiff’s request since those matters fell outside the scope of the slip rule and the comments he made in Chao v Don. 35.Mr Clarke submitted that this decision was wrong since the learned judge appeared to have muddled the power to amend under the slip rule which was limited to rectifying clerical errors and the discretion under the reconsideration jurisdiction which had a broader basis. He submitted that such confusion was reflected in the following passage in the judgment :
I cannot agree with Mr Clarke’s reading of the judgment. Plainly, the learned judge was of the view that the other matters which counsel asked him to re-visit did not fall within either the slip rule or the reconsideration jurisdiction. By referring to Chao v Don and the decisions of Neuberger J and Rix LJ (ie Re Blenheim Leisure (Restaurants) Ltd (No 3) and Noga v Abacha), the learned judge was plainly well aware of the principles of the reconsideration jurisdiction. I do not agree there was any confusion as suggested. 36.I respectfully agree with the principles set out and clarified in the authorities referred to above. In my view, once a decision has been given and/or reasons therefor have been handed down, there are obvious reasons (which I need not rehearse again in light of the above analysis) why the court should think long and hard before making any material changes. Whilst a court may retain the discretion to do so very sparingly (eg where there was an obvious error) to save the parties the costs of an appeal, re-opening matters which have been argued or allowing one or more parties to add to their case or raise new arguments and grounds should rarely be allowed. Indeed, it is likely to be rejected unless there are exceptional circumstances or strong reasons. 37.I mention for completeness that at the Adjourned Hearing, after standing the matter down for the parties to consider the authorities, Mr Clarke referred me to paragraph 9 of the judgment of Chung J in China Resources Electrical Appliance (Zhuhai) Co., Limited & anor v Decosonic Hong Kong Limited HCCL39/2001 (unreported, 25th August 2001). However, that paragraph dealt with the procedure for exercising the court’s power to alter or vary an ex parte order which had not been drawn up. It was suggested that the practice might be similar to that which pertained to an application under the slip rule. I do not find such authority helpful on the issue of how the discretion under the reconsideration jurisdiction should be exercised. 38.With the above principles in mind, I now turn to the Summons. Mr Ng’s affirmation evidence 39.It is necessary to refer to 1st and 2nd Affirmations because the application in the Summons under the inherent jurisdiction was for re-opening the Order and to re-hear “the matter giving rise thereto” on “fresh grounds”. 40.Mr Ng claimed he was a partner of the Firm. I pause to note Mr Chiu’s written submissions for the 6/9/06 Hearing which stated that at the material time Mr Ng did not have any partner or assistant solicitor apart from a consultant working separately from him. 41.Mr Ng went on to say that in October 2003 the Applicant approached the Firm for legal advice/assistance in relation to the death of her husband. Mr Ng referred her to the Legal Aid Department as it appeared she might be eligible for legal aid. The Applicant was granted a legal aid certificate and Mr Ng was assigned by the Director to act as her solicitor. Mr Ng had conduct of these employees’ compensation proceedings on behalf of the Applicant from the beginning. 42.In the course of acting for the Applicant, Mr Ng briefed counsel to appear at the 1st to 4th Hearings (even though no counsel had been assigned by the Director) because of Mr Ng’s own medical condition and because the only other solicitor in the Firm was not available. 43.Again I pause to say Mr Ng’s 1st Affirmation did not clarify the circumstances why the only other solicitor in the Firm was not available. Mr Chiu’s written submissions for the 6/9/06 Hearing gave the reason that the Firm’s consultant was “working separately from [Mr Ng]”. 44.As regards Mr Ng’s own medical condition, he stated in the 1st Affirmation that apart from a chronic dermatological complaint (which was already referred to in the Firm’s letter to the Director dated 19th August 2006), in addition he had impaired hearing and a speech impediment. “As a result, although [he was] confident of [his] ability to handle a client’s matter on paper and in [his] office, [he thinks] the Applicant may be better represented by counsel than by [him] personally in Court”. 45.Mr Ng stated in the 1st Affirmation that on each of the four occasions when counsel was instructed to appear for the Applicant it was done on the basis that the Firm would be responsible for counsel’s fees and would waive any costs incurred in instructing counsel, so no certificate for counsel was sought or granted at any of the 1st to 4th Hearings. 46.For each of the 1st to 4th Hearings, the Applicant was informed that counsel would be instructed at the Firm’s cost, and counsel was made aware that the Applicant was legally aided and that the Firm would be responsible for their fees. On each occasion the order as drawn up and entered showed that counsel appeared for the Applicant and such order was provided to the Director. 47.Mr Ng stated that at the 4th Hearing, this court questioned the propriety of counsel being instructed by the Firm. He wrote to the Director on 19th August and 5th September 2006 to confirm that neither counsel’s fees nor the Firm’s costs of instructing counsel would be claimed. 48.After considering the Reasons, Mr Ng took instructions from the Applicant, consulted the Director and sought advice from professional colleagues. He felt uncomfortable in acting for the Applicant despite her wish for him to continue. He wrote to the Director on 30th September 2006 for permission to be discharged from acting for the Applicant in these proceedings. By a Notice of Re-assignment dated 10th October 2006, the Director transferred the Applicant’s matter to another firm. 49.On 12th October 2006 the Firm issued its bill to the Director. Mr Ng was sure that in light of my Order the Director would scrutinise the bill and object to any improper item, and Mr Ng agreed to waive any such item that should not be included. Mr Ng also exhibited the backsheets delivered to the 1st to 4th Counsel, their fee notes and receipts, and the Firm’s letters to the 1st to 4th Counsel all dated 15th September 2006 (ie after the Reasons were handed down) enclosing cheque payments for their fees. Mr Ng submitted the above sufficiently demonstrated he had made good his promise that counsel’s fees and the costs of instructing counsel would be entirely for the Firm’s account. 50.Mr Ng also referred to various correspondence with The Law Society of Hong Kong in October 2006, which I have also carefully considered. 51.Mr Ng was legally advised there might be grounds to re-open my Order and to re-hear “the matter giving rise thereto …… on fresh grounds” “so long as it is not perfected. For that reason [Mr Ng has] refrained from sealing the said order.” Reconsideration : present case 52.There is no dispute that the final Order has not yet been drawn up. The present application to “re-open” and “re-hear” was made by Mr Ng and/or the Firm and did not arise from the court inviting further submissions. 53.In my view, the possibility and appropriateness of an appeal are relevant considerations. As pointed out by Rix LJ at p.526 of his judgment in Noga v Abacha, clearly it cannot be in every case that a litigant should be entitled to ask the judge to think again. In every case where an appeal is allowed, the court below has, by definition, got it wrong. The solution is to appeal. I therefore ask the rhetoric questions : what is exceptional about this case? What are the strong reasons? 54.Mr Ng and/or the Firm did not seek to reverse the letter (or even the spirit) of the Order. Indeed, Mr Ng in the 1st Affirmation was at pains to emphasise that he would abide by the terms of the Order and that he had taken action pursuant to the Order (see the matters set out in paragraph 49 above). 55.One of the prime matters which Mr Ng and/or the Firm sought to reverse is the interpretation of the Legal Aid Ordinance in the Reasons. Mr Clarke’s contentions are set out in detail in paragraphs 12 to 22 of his written submissions, which he supplemented with oral submissions at the Adjourned Hearing and which I have carefully considered. However, as is apparent from the transcript and Mr Chiu’s written submissions for the 6/9/06 Hearing, such issue has in fact been addressed in written and oral submissions at the 6/9/06 Hearing. The issue was in the mind of the court and the parties latest by the 6/9/06 Hearing and was the subject of reasoned decision in the Reasons. It is not a case that took Mr Ng by surprise, nor was it a new point of significance that occurred to one of the parties or the judge after the Reasons have been handed down. 56.In my view, it is not permissible for a party to ask for a further hearing merely because he has thought of a possible ground or argument that he originally overlooked or because he wished simply to re-argue his case. I am not persuaded this court should rectify what Mr Ng and/or the Firm perceive as misinterpretations of the law in the Reasons by rewriting those parts that are said to be inconsistent with their contentions. The arguments should more properly be considered by the appellate court in the event of an appeal, so I do not propose to embark on what Deputy High Court Judge Carlson aptly described as an unseemly exercise in self-justification. 57.In this respect, I do not see any material difference between the present case and Noga v Abacha although they naturally turn on different sets of facts. Similar to Mr Ng and/or the Firm in the present case, the applicant in Noga v Abacha contended that the judge’s decision on the application of the law was flawed. There applicant in Noga v Abacha wished to rely on certain authorities not previously referred to and here Mr Clarke raised several legal arguments which he submitted were not addressed to this court at the 6/9/06 Hearing. The reasons given by Rix LJ for refusing to reopen the case for further argument (see paragraph 30 above) can be applied mutatis mutandis here. I do not consider the legal propositions put forward by Mr Clarke in his submissions on the interpretation of the Legal Aid Ordinance to be “too plain for argument”. On the other hand, I am of the view that the appeal process will be subverted should I allow the matter to be re-opened. 58.Of the other matters raised in the 1st and 2nd Affirmations, I am of the view that no new piece of evidence or information emerged that Mr Ng and/or the Firm could not have put forward prior to or at the 6/9/06 Hearing. 59.Although Mr Ng set out in the 1st Affirmation the circumstances as to how the Applicant applied for and was granted legal aid, I cannot see how those facts are pertinent to the matters which Mr Ng and/or the Firm sought to re-open or re-hear. 60.Various matters raised in the 1st Affirmation, such as (a) the Director did not assign any counsel for these proceedings, (b) Mr Ng suffered from medical condition that prevented him from attending court hearings, (c) no certificate for counsel was sought or granted at the 1st to 4th Hearings, (d) the 1st to 4th Counsel were aware that the Applicant was legally aided, (e) counsel’s fees would be borne by the Firm, and (f) the Director was informed ex post facto that counsel had been instructed, were all known and/or ventilated at the 6/9/06 Hearing. 61.Mr Clarke submitted that an additional fact now placed before this court was Mr Ng’s intention all along to be personally responsible for counsel’s fees, so there was no question of wasting public expenditure. Mr Clarke further submitted that Mr Ng did not just give a pro bono service to the aided Applicant, he in fact subsidised the aided Applicant’s case by briefing counsel out of his own pockets. 62.However, it is plain Mr Ng had through the 4th Counsel indicated such intention to bear counsel’s fees personally at the 4th Hearing (see paragraph 11 of the Reasons) and such intention was also clearly stated in paragraphs 3 and 4 of Mr Chiu’s written submissions for the 6/9/06 Hearing. Further, Mr Chiu in his written submissions identified the question whether by instructing counsel “public funds of the Legal Aid would be misused” as one of the issues before me at the 6/9/06 Hearing. He also made the point in paragraph 4 of his written submissions that there was “no question of the fund of the Legal Aid being misused or wasted in any sense”. In paragraph 18 of the Reasons, I also noted that Mr Ng’s aforesaid intention might practically remove concerns over expenditure by the public purse on counsel’s fees or legal costs incurred by the assigned solicitor in instructing counsel. In my view, this is not an additional new fact. 63.It is true that Mr Ng in his 1st Affirmation mentioned that apart from his chronic dermatological disease, he also suffered from impaired hearing and speech impairment, so he believed the Applicant might be better represented by counsel than by him personally at the four court hearings. Mr Clarke submitted that from his own experience it was difficult to understand Mr Ng in English or in Chinese. Mr Clarke further submitted that Mr Ng was naturally concerned if he appeared in court, he might not hear the court or other side clearly or make his submissions on behalf of the aided Applicant clearly. 64.Since the dates of the 1st to 4th Hearings spanned more than two years from 2004 to 2006, plainly Mr Ng’s speech and hearing problems are not new circumstances, but facts which he could have placed before the court at the 6/9/06 Hearing should he so wished. In any event, the discussion in paragraph 40 of the Reasons was on the premise of an assigned solicitor handling a litigation case that required court hearings and suffering from a condition so debilitating that he cannot attend such court hearings, and not on a debate as to whether the condition will render him suitable for attending the court hearings or not. I am not persuaded that Mr Ng’s disclosure of his further medical condition would have affected the conclusion reached. 65.Mr Ng and/or the Firm reminded that no certificate for counsel was sought or granted at the 1st to 4th Hearings, so the Firm would not have been able to recover counsel’s fees from the opposite party(ies). This, again, is not a new circumstance, but a known fact at the 6/9/06 Hearing. Mr Clarke helpfully reminded me that I have in paragraph 22 of the Reasons already noted the Director’s stance that he would not be liable for (and would have been able to object to payment of) counsel’s fees in any event because he did not assign the 1st to 4th Counsel. Mr Clarke further submitted that in the circumstances there was no lacuna in the law that might allow any mischief to be perpetrated. 66.In my view, the matter of certificate for counsel relates to the inter partes situation between the aided person and the opposite party instead of the solicitor and own client situation between the assigned solicitor and the aided person and/or the Director. Mr Clarke accepted that even if there is no order for certificate for counsel, it is not impossible for an assigned solicitor to recover disbursements for counsel’s fees and costs of and occasioned by instructing counsel from the Director under legal aid taxation. In the circumstances, the heart of the issue relates to the court order granting legal aid taxation of the aided person’s own costs instead of the inter partes costs order relating to certificate for counsel. 67.The court in deciding whether to grant an order for legal aid taxation of an aided person’s own costs (which may potentially include counsel’s fees irrespective of the inter partes position) involves an exercise of discretion, which should be exercised judicially on proper consideration of all the relevant facts. It is therefore usually incumbent on the party seeking legal aid taxation to place all relevant information before the court to enable the court to properly exercise that discretion. 68.Mr Clarke contended that in the present circumstances, since the Director would not be liable for counsel’s fees and such fees could not come out of the Applicant’s eventual compensation (if any), legal aid taxation of the aided Applicant’s “own costs” necessarily meant costs and disbursements incurred by the Director on her behalf. In short, it is implicit in the orders for legal aid taxation of the Applicant’s own costs made at the 1st to 3rd Hearings that counsel’s fees would be excluded. 69.Such proposition was not specifically raised by Mr Chiu on behalf of Mr Ng at the 6/9/06 Hearing. But it raises the question whether it should be left (a) to the assigned solicitor upon obtaining an unrestricted order for legal aid taxation from the court to decide what to and what not to include in the legal aid taxation bill and (b) to the Director to pick up and object if any unwarranted item of costs was slipped in. However, no new facts are raised for Mr Clarke’s aforesaid proposition. I am not persuaded it falls into the category of exceptional circumstances or strong reasons such that alteration of the Reasons was called for on the basis of palpably clear and uncontroverted facts or law. 70.It is of course a new circumstance that Mr Ng and/or the Firm received advice from professional colleagues after the Reasons were handed down and that they took steps to abide by the Order. But in my view, this is not sufficient to justify my exercising the Barrell jurisdiction. A contrary conclusion would leave the courts wide open to applications to revoke their decisions before they are perfected because a party wishes to re-open his case after receiving new legal advice. 71.I agree with Roch LJ in Stewart v Engel (which dealt with amendment of pleadings after judgment) at p.542 that “[it] is clearly not satisfactory for the claimant to be allowed to wait and see the outcome of the defendants’ application and then, if the judge decides in the defendants’ favour, to apply for an amendment. There must be some satisfactory reason for failure to apply for the amendment at the proper time. The proper time is either before the defendants’ application is heard or during the hearing of the application.” 72.In the circumstances, I dismiss the application by Mr Ng and the Firm to re-open or re-hear the matters that were before me at the 6/9/06 Hearing and/or as set out in my Reasons. Leave to a ppeal 73.The alternative application under the Summons was for leave to appeal against my Order and/or Directions to the Court of Appeal. 74.Section 63 of the District Court Ordinance Cap.336 provides that a party may only appeal from the District Court to the Court of Appeal with leave. If a judge below refuses leave, the intended appellant may still apply for leave to appeal to the Court of Appeal. The principles on application for leave to appeal are set out in Ma Bik Yung v Ko Chuen HCMP 4303/1999, Leong JA (unreported, 8th September 1999) citing Smith v Cosworth Casting Processes Limited [1997] WLR 1538 in which Lord Woolf provided the following guidance :
75.The above principles are also followed in the District Court (see the judgment of H H Judge Muttrie in Unifruit Limited v Capital Years International Limited DCCJ 5798/2002 (unreported, 21st July 2003)). 76.In my view, the more significant matter is that the Reasons dealt with the issue of whether it is permissible for an assigned solicitor to instruct counsel of his or the aided person’s own choice (irrespective of whether such counsel is on the legal aid panel or not) without prior notice or approval of the Director at the assigned solicitor’s own cost. This may well, as Mr Clarke submitted, turn on a matter of law, ie the interpretation of the Legal Aid Ordinance. I have read the written submissions of Mr Clarke and heard his oral submissions. It seems to me that I cannot say Mr Ng and/or the Firm have no realistic prospect of success on appeal in respect of their interpretation of the law. Further, since the legal aid regime as well as the conduct and legal representation of legally aided cases are matters of public interest, I am satisfied the above issue may be one which should in the public interest be examined by the Court of Appeal. 77.I bear in mind the Court of Appeal said in King Royal Limited v Lam Kwan Yuk HCMP 448/2005 (unreported, 27th April 2005) that it is not for this court to restrict the grounds which could be argued on appeal if it is considered appropriate to grant leave to appeal. I therefore grant Mr Ng and the Firm general leave to appeal accordingly. 78.At the Adjourned Hearing before me, Ms Chuah made no substantive submissions in respect of the Summons, and left the matter to the discretion of the court. However, she raised a number of issues without actually stating the Director’s firm stance on any of those issues, namely :
Mr Clarke took issue over the above matters. But in my view, these are matters which, subject to the views of the Court of Appeal, should be addressed in the appeal. 79.In light of the public interest considerations that I have referred to, I invite the Director to assist the Court of Appeal at the hearing of the appeal proper by clarifying his position in relation to the above issues that may have intimate impact on the operation of the legal aid regime. Miscellaneous issues 80.The remaining outstanding issue is the disposal of the Adjourned Hearing. Mr Clarke submitted that the issue of referral to The Law Society of Hong Kong should be reserved to the Court of Appeal in the event I grant leave to appeal. Subject to the matters set out in the following paragraph, I agree and so order. 81.In case the appeal is not pursued to final disposal, given the nature of the outstanding issue, there should still be some finality. I therefore direct that Mr Ng and the Firm do write to this court six months hence, ie between 1st and 30th June 2007, with copy to the Director to inform this court of the status or progress of the appeal so that this court may give further directions (if appropriate) to deal with the outstanding issue. Costs 82.Since Mr Ng and the Firm failed in their application to ask this court to reconsider the Order and the Reasons, the general rule is for costs to follow event, ie they should bear the costs of this aspect of the Summons. As regards the alternative application for appeal, the usual order is costs in the cause of the appeal. However, both Mr Clarke and Ms Chuah asked me to make no order as to costs of the Summons. I therefore grant a costs order nisi to such effect. 1st to 4th Counsel 83.At the 6/9/06 Hearing, I invited the 1st to 4th Counsel to attend the Adjourned Hearing to address on their own representation of the aided Applicant. It is only fair to let counsel have the opportunity to address the court if and before the matter is taken any further. 84.As indicated in my Reasons, the crux of the matter is the proper representation of parties, which appear to be a matter of professional conduct as well. The 1st, 3rd and 4th Counsel acknowledged that at the material times they were not on the legal aid panel. There is also no dispute that (a) their backsheets were marked with the legal aid reference numbers, (b) orders for legal aid taxation of the Applicant’s own costs were granted at the 1st to 3rd Hearings, and (c) a draft order was submitted at the 4th Hearing for legal aid taxation of the Applicant’s own costs. 85.I do not propose to set out in full the explanations given by the 1st, 3rd and 4th Counsel save to say they mentioned the limited information provided by their instructing solicitors and their then relative inexperience in failing to recognise that they should not appear for the aided Applicant at the relevant court hearings when they were not counsel on the legal aid panel. 86.As explained at the Adjourned Hearing, it is not the function of this court to investigate the professional conduct of legal practitioners. That is for the relevant professional bodies, and I say nothing further vis-à-vis the 1st to 4th Counsel. However, the judiciary relies heavily upon the legal profession, and so accepts a responsibility to uphold the highest standards of the advocates who come before the courts. It is plain from the above it will at least be beneficial for the young bar that there be guidance from their professional body on proper representation by counsel in legally aided cases. It is for such purpose that I direct the Registrar to refer this matter to the Hong Kong Bar Association.
Representation: Mr W S Clarke of Messrs Brian Kong & Co for Mr Ng Pak Chung Alexander and Messrs Ng & Co Ms Chuah Siew Theng for the Director of Legal Aid Mr Vincent Lam, Mr Chu Ming Tung and Mr Victor Chiu of counsel, present Mr Warren Tang of counsel, absent |
Cases cited in this judgment
Further hearings and rulings under DCEC 97/2004