Tso Chun Cheong v. Mak Chi Ming t/a Lik Wang International Sofa Co
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DCEC 873/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 873 OF 2006 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge R. Cheung in Court Date of Hearing: 2nd March 2007 Date of Handing down Assessment of Damages: 6th March 2007 ------------------------------------------ ASSESSMENT OF DAMAGES ------------------------------------------ The Issue 1.The application for assessment raises a point on jurisdiction: do I have the jurisdiction to entertain the Applicant's claim at all? The Facts 2.The background of the case is uncomplicated. 3.The Applicant suffered personal injury by accident arising out of and in the course of his employment on 11 April 2005. 4.On 26 January 2006, the Commissioner for Labour issued a Certificate of Review of Compensation Assessment (Form 6) ("the Certificate of Assessment") pursuant to Section 16A(5) of the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance"). 5.The Applicant filed his Application for assessment of compensation payable under Sections 9, 10 and 10A of the Ordinance, on 30 June 2006. 6.The above Application does not contain any application for the cancellation of the Certificate of Assessment under Section 16B of the Ordinance. The Application does not seek to appeal against the Certificate of Assessment under Section 18 of the Ordinance. The Application also does not contain an application under Section 16A(8) of the Ordinance for the amount payable under the Certificate of Assessment to be made an Order of this Court. 7.There was no separate appeal filed in respect of the Certificate of Assessment. None of the matters referred to in the preceding paragraph has been independently raised elsewhere. 8.Interlocutory Judgment was entered herein on 15 December 2006 for the compensation to be assessed. 9.The matter came before me on 2 March 2007. The hearing of the assessment was short. No application for cancellation of the Certificate of Assessment or appeal against the Certificate of Assessment was raised before me. No application for an extension of time for such was sought. I raised the matter with the legal representative of the Applicant that there was no application made under Section 16A(8) of the Ordinance. I had not then referred to Section 18A of the Ordinance nor was I referred to that provision. The Law 10.In the circumstances, I am bound by the Certificate of Assessment. Ng Ming Cheong v. Mass Transit Railway Corporation, CACV 131/1997, 24 October 1997 applied. 11.In Ng Ming Cheong, a certificate of assessment was issued by the Assessment Board constituted under the Ordinance. There was no appeal against the certificate of assessment. The trial judge therein made an assessment on the medical evidence before him and came to a different assessment. On appeal, it was held that the assessment made in the certificate of assessment is final and binding. Le Pichon J. said "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. Accordingly, we accept the Appellant's submission that the judge should have assessed compensation on the basis of a permanent loss of earning capacity of 53%". 12.At first brush, Ng Ming Cheong may appear to support the proposition that even with a binding certificate of assessment, invariably the District Court may always proceed to determine and make an award in respect of the employee's entitlement to employee's compensation, albeit that has to be done in accordance with the compensation already assessed under the certificate of assessment, which is binding. 13.Ng Ming Cheong however is silent on the point as to whether the employee therein had made an application under Section 16A(8) of the Ordinance to make the certificate of assessment therein an Order of the Court. Further, the focus of Ng Ming Cheong is on whether the District Court may assess compensation afresh when there is a binding certificate of assessment that has not been appealed against. There is no discourse whatsoever in Ng Ming Cheong on the interplay between Section 16A(8) and Section 18A of the Ordinance. While I appreciate that the Applicant herein will have to go away empty handed in these proceedings unless he may pray in aid of Ng Ming Cheong, I find myself unable to rely on Ng Ming Cheong as support of the proposition in paragraph 12 above. 14.On the basis that Ng Ming Cheong does not support the above proposition, then I am of the view that an application under Section 16A(8) of the Ordinance is a pre-requisite for the District Court to make an Order in accordance with a binding certificate of assessment. 15.This is so as there is an issue about jurisdiction. The present claim precisely raises that issue. 16.Section 18A and Section 21 of the Ordinance are provisions that confer jurisdiction on the District Court to deal with claims made under the Ordinance. 17.Section 18A of the Ordinance provides inter alia as follows: "Except where otherwise provided under this Ordinance, all claims for compensation, except to the extent that such claims are determined …….. by certificate under section 16A …….. and any matter arising out of proceedings in respect of such claims shall be determined by the District Court" (emphasis my own). In this manner, the jurisdiction of the District Court to entertain such claims is restricted. When there is a binding certificate of assessment, the District Court is precluded from entertaining any claim for compensation. 18.Section 21 of the Ordinance confers jurisdiction on the District Court to entertain claims made under the Ordinance in more general terms. Among other things, it raises the monetary ceiling of the jurisdiction of the District Court in relation to such claims. 19.I do not think the more general provisions in Section 21 of the Ordinance overrides the specific restrictions imposed under Section 18A of the Ordinance. 20.In the present case, the Certificate of Assessment is binding on me. There has been a determination under Section 16A(5) of the Ordinance. By reason of Section 18A of the Ordinance, I do not have jurisdiction to assess the Applicant's compensation, not even if I were to follow strictly the assessment made in the Certificate of Assessment. I am entitled to come to this conclusion as I am not bound by the Interlocutory Judgment herein. 21.The Applicant may, of course, file a fresh application under Section 16A(8) of the Ordinance so that the amount payable under the Certificate of Assessment may be made an Order of the District Court. This is viable in my view because Section 16A(8) claims are not "claims for compensation" caught by Section 18A(1), or alternatively, Section 18A(1) must be read as subject to Section 16A(8) to avoid an absurdity, for how else is an employee to enforce payment of the amount determined under a certificate of assessment that has not been appealed against? The Orders 22.The application is dismissed for want of jurisdiction without prejudice to the Applicant's filing of a fresh application under Section 16A(8) of the Ordinance. 23.I would order the Applicant's own costs be taxed in accordance with the Legal Aid Regulations.
Representation: Mr. Charles L.F. Tse, of Messrs. Yip, Tse & Tang (assigned by D.L.A.), for the Applicant The Respondent: unrepresented, absent |
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