Tsui Wai Kam v. Wang Fung Machinery & Engineering Ltd

DCEC 530 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION NO. 530 OF 2009

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BETWEEN

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Coram: Deputy District Judge Clement Lee in Court

Date of Hearing: 27^th October 2010

Date of Handing Down Reasons for Decision: 27^th October 2010

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REASONS FOR DECISION

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A. INTRODUCTION

1.In issue is whether the notice of acceptance of payment into court filed on 1^st September 2010 by the Applicant is valid, if so, whether the Applicant can withdraw the said notice of acceptance.  If the Applicant cannot withdraw the said notice, whether the effect of such an acceptance is that the claim is stayed under O.22, r.22 of the Rules of the District Court (“RDC”).  The second issue is: assuming that the Applicant can withdraw the notice of acceptance and the trial shall proceed, whether I should recuse myself from conducting the trial when the Applicant acting in person disclosed to me sitting as the trial judge the payment in made by the Respondent. 

B. BACKGROUND

2.The background of the case is this.  Pursuant to the orders of a judge in charge of list of employees’ compensation cases dated 30^th July 2010, the case was set down for trial on 27^th October 2010 with 28^th October 2010 being reserved.

3.By a letter dated 20^th September 2010, solicitors for the Respondent wrote to the Registrar and asked for “removal the captioned action from the fixture list” on the ground that the Applicant has filed a notice of acceptance of payment in.  A copy of the said notice was enclosed.  It is a kind of statutory form stated under O.22, r.15(4).  The letter was put before me for consideration.  The request in the letter is unclear as to whether they asked for vacating the trial dates.  But the enclosed copy seems to suggest that the case was settled and trial dates are to be vacated.

4.On or about 27^th September 2010, the Registry received a letter dated 25^th September 2010 from the Applicant.  He asked for “cancellation of the out of court settlement” because the Legal Aid Department would only release money after 6 months.  He determined to proceed with the trial.

5.In respect of the issue of validity of the said notice, problem arises when one looks closely into the said form 24.  The Applicant failed to “delete as appropriate”.  The uncertainties are whether he accepted the payment in of $8,700 to settle the whole claim or part of the claim or some issues.  These uncertainties are removed when one looks at the documents filed before and at the same time this form 24 was filed.  Before this form 24, the Respondent’s solicitors filed 2 notices of sanctioned payment on 28^th June 2010 and 5^th August 2010 with certificates certifying the notices of sanctioned payment were served on the Applicant.  Those notices were stated to be to settle “the whole of your claim”. 

6.The Applicant filed the notice of acceptance of payment in dated 30^th August 2010 on 1^st September 2010.  Although the Applicant did not delete as appropriate, the said acceptance was responding to sanctioned payments to settle the whole claim.  For this reason alone, even if he failed to delete as appropriate, the said notice of acceptance of payment is clear in that he is willing to accept $8,700 to settle the whole claim.  It is valid and is binding on the Applicant.  My view is further fortified by the fact that this form 24 was filed together with form 25 by the Applicant.  Form 25 is the request for payment out in which the Applicant states clearly that he accepted $8,700 for settlement of the whole claim. 

7.Next question is whether the Applicant can “cancel” or withdraw the notices of acceptance of payment in.  The answer seems to be “No”.  Simply put, unlike sanctioned offer or sanctioned payment where there are provisions permitting it be withdrawn or diminished under O.22, r.7 and r.10, there is no similar provision for withdrawal of the notice of acceptance of payment in.  This has the effect similar to the law of offer and acceptance.  Once the offer is accepted, the binding agreement was made.  The legislative intention seems to be clear and tallies with the trite law on contract.    

8.Even if I have the jurisdiction to grant leave to withdraw the said notice, I would have not exercised the discretion to permit the withdrawal.  The Applicant failed to state sufficient or good reason to withdraw the notice.  He simply mentioned “the Legal Aid Department would only release money after 6 months.”  My view is that in the absence of fraud, misrepresentation or other vitiating factors that may sap a person’s will, the Court should not allow the withdrawal of a valid acceptance.    

9.The net result of having the valid notice of acceptance is that the claim is stayed pursuant to O.22, r.22(1) of RDC.

10.Had I been wrong and should have allowed the withdrawal of the said notice, I would have decided to continue the trial by myself, despite the Applicant’s disclosure of the payment in to me by ignorance or inadvertence.  Counsel for the Respondent submitted that I need recuse myself.  She refers me to O.22, r.15(2).  It provides that:

“The fact that a sanctioned payment has been made must not be communicated to the trial judge or the master hearing or determining the action or counterclaim or any question or issue as to the debt or damages until all questions of liability and the amount of money to be awarded have been decided.”

11.What would be the consequence if the information of payment in is disclosed to the trial judge?  The answer can be found in the relevant passage extracted from Hong Kong Civil procedure 2010 edition, paragraph 22/7/1:-

“It is the duty of both judge and counsel to observe this rule, but if, by inadvertence or otherwise, it is broken, it is a matter for the trial judge to determine what shall be done. If he thinks it proper, or necessary, for the due administration of justice, he may refuse to hear the action further, and direct it to be heard by another tribunal. But if he is satisfied that no injustice will be done he may allow the cause to proceed; this course, if taken, in itself afford no ground for appeal (Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 CA). See too Re an Action for Negligence (1992) C No. 3063), the Times, March 5, 1993; [1993] TLR 117 where during the course of a trial a journal revealed not only the fact of payment in but also the amount thereof. The court held it was open to the judge to continue the hearing if he could put such knowledge to one side for the purpose of making his decision at the end of the trial.”

12.I entirely agree with the legal commentary, especially nowadays, quite a number of litigants in person would not know or care what are the fundamentals of “without prejudice”. They occasionally wrote to the judge or judicial officers for whatever they like, for example to express that “I offer to settle by paying a certain sum” or “I refuse to accept the opponents’ unreasonable offers”.  Sometimes those expressions were found in their sloppy pleadings or witness statements.  My view is that a professional judicial officer or judge would not be affected by this without prejudice offer or figures so long as they adhere to the core value of law and evidence.    

13.In the nutshell, the claim is stayed pursuant to the said rule.  Next question is cost incurred after the Applicant filed the notice of acceptance of payment in.  There are cost incurred after the Applicant’s acceptance of payment in, including the Respondent’s counsel’s fees and the cost for the preparation of this trial.  My view is that the Respondent should have opposed the Applicant’s proposed withdrawal of the said notice and informed the Court as soon as practicable that the case was settled and the trial shall not commence.  However, by their letter dated 12^th October 2010, it seems that the Respondent prepared the case as if the Applicant’s withdrawal may be accepted without stating clearly their position, the position now made clear by their Counsel, that is case was settled and trial is not necessary.  Unnecessary cost have been incurred and I think the most suitable costs order is that there be no order as to costs incurred from 1^st September 2010 (the date of the Applicant’s notice of acceptance of payment in) until today.

14.I also direct that there be payment out to the Director of Legal Aid the said payment in pursuant to O.22A, r.2 of the RDC.

Note: This judgment is pronounced in Punti. Any party wishes to have the Chinese translation of the written judgment must apply in writing on or before 27th September 2010.

注意: 此判決是以本地話宣讀。如訴訟一方欲索取書面判決中文譯本，必須於2010年11月10日或以前以書面申請。

The Applicant appears in person.

Ms. Pauline Leung instructed by Messrs. Tsang Chan & Wong for the Respondent.