IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 189 OF 2002
IN THE MATTER OF AN APPLICATION BETWEEN
||KWONG YUK NGOR
||VOCATIONAL TRAINING COUNCIL
||Master David Chan in Chambers (Open to public)
|Dates of Hearing:
||17 August 2017, 26 October 2017 and 23 February 2018
|Date of Decision:
||7 November 2018
1. This is an application of Messrs Massie & Clement (“M&C”) to vary or revoke the Order made by Master S H Lee dated 27June 2017, under which the present common fund taxation proceedings are stayed pursuant to O 62, r 9D of the Rules of the District Court, Cap 336H (“RDC”), with liberty to the apply for variation or revocation of such order (the “Stay Order”).
2. Madam Kwong Yuk Ngor (“Madam Kwong”) is the applicant in the captioned Employees Compensation case (“EC Case”). She was legally aided between 30 January 2002 and 25 February 2008. Her legal aid certificate was discharged on 26 February 2008. Since then, she has acted in person. The EC Case has since become stagnant, with neither Madam Kwong nor the respondent, Vocational Training Council (“VTC”), having done anything to bring the EC Case to a conclusion.
3. During the time when Madam Kwong was legally aided, various firms of solicitors were assigned by the Director of Legal Aid (the “Director”) to represent her in the EC Case. These firms include Messrs Yip, Tse & Tang (“YTT”), Messrs Leung, Tam & Wong (“LTW”) and M&C. M&C is the firm which last represented Madam Kwong in the EC Case before the legal aid certificate was discharged.
4. On 10 March 2017, M&C filed a Notice of Commencement of Taxation (the “Notice”) and a Bill of Costs (the “Bill”), seeking taxation of Madam Kwong’s own costs pursuant to Regulation 9(3)(a) of the Legal Aid Regulations, Cap 91A (“LAR”). The Bill is issued not only for the costs of M&C, but also for the costs due to YTT and LTW (the “Taxation Proceedings”). The Notice and Bill were served on Madam Kwong and the Director as the paying parties.
5. So far, no List of Objections to the Bill has been filed by Madam Kwong. The Director filed his List of Objections on 26 April 2017 (“Director’s LOO”). The sole contention raised by the Director is that the EC Case has not been concluded. Thus, in accordance with O 62, r 9D of the RDC, M&C should not have commenced the Taxation Proceedings.
6. On 4 May 2017, M&C filed an Application to Set a Bill Down for Taxation (“ATSD”). A call-over by way of paper disposal was fixed for 17 August 2017.
7. However, prior to the paper call-over, the Stay Order was made by Master S H Lee, on the ground that the EC Case has not been concluded.
8. By an Inter Parte Summons dated 7 July 2017, M&C seeks variation or revocation of the Stay Order (the “Application”).
9. The Application first came before me for call-over hearing on 17 August 2017 (“1st Hearing”). The 1st Hearing was attended by Mr R Clement of M&C (“Mr Clement”), and Ms W L Lui (“Ms Lui”) of the Legal Aid Department. As to Madam Kwong, just before the start of 1st Hearing, she sent, by way of a facsimile message, her request for being excused from the hearing, citing her medical condition. She had not, however, expressed in her message as to whether she would contest the Application.
10. Prior to the 1st Hearing, I note from Ms Lui’s written submissions that, contrary to the Director’s LOO, the Director has abandoned his original stance, and argued in support of the Application (“Director’s 1st Submissions”). Be that as it may, I did have concern of whether the Stay Order should be lifted. With the EC Case still being alive, there may be a chance that at its conclusion, VTC would be held liable for the costs or part of the costs that are now being claimed under the Bill.
11. In order to ascertain Madam Kwong’s stance as to the Application, and to receive further submissions from Mr Clement and the Director, I adjourned the call-over hearing to 26 October 2017 (the “2nd Hearing”). Notice of the 2nd Hearing was sent by this Court to Madam Kwong.
12. The 2nd Hearing was attended by Mr Clement and Mrs Christina Hadiwibawa, assistant principal legal aid counsel (“Mrs Hadiwibawa”). Madam Kwong was again absent from the hearing.
13. During the 2nd Hearing, there were discussions on the written submissions filed on 21 September 2017 (“Director’s 2nd Submissions”). In particular, I had raised the issue of the legislative intent of Regulation 9(3)(a) of LAR, a crucial point which I will return to later on in this Decision. Mr Clement and Mrs Hadiwibawa were invited to file further written submissions on this issue.
14. In the middle of the 2nd Hearing, a facsimile message dated 26 October 2017 from Madam Kwong was brought into the court. In the said message, she cited her medical condition as a reason for her absence, and requested for an adjournment of the hearing, and a chance to file her submissions regarding the Application.
15. By reasons of the above, I adjourned the Application for argument, with an order that unless Madam Kwong files her written submissions within 14 days before the adjourned hearing, she would be debarred from filing the same and/or making any oral submissions on the Application.
16. The substantive hearing for the Application took place on 23 February 2018 (“3rd Hearing”). Madam Kwong was again absent, and no written submissions was filed by her. It was only after the conclusion of the 3rd Hearing that a facsimile message from Madam Kwong was received. In this facsimile message, Madam Kwong explained that she could not attend the 3rd Hearing due to her health condition. She also included in this facsimile message her written submissions, the contents of which I note are irrelevant to the Application. I will, nevertheless, briefly set them out later on in this Decision for completeness sake.
17. I will now turn to the Director’s Submissions.
Director’s 1st Submissions
18. As stated in the above, the Director originally objected to the Taxation Proceedings, on the basis that the EC Case has not been concluded. This led to the Stay Order being made.
19. By the Director’s 1st Submissions, the Director has changed his stance and now argues in support of the Application. Consequential directions are also sought for the withdrawal of the Director’s LOO and leave to file a new List of Objections to the Bill.
20. Ms Lui, in the Director’s 1st Submissions, first set out the background facts leading up to the Application.
The History of Legal Assistance
21. Legal aid certificates were granted to Madam Kwong on 30 January 2002 for her common law claim in HCPI 573/2003 (the “PI Case”) and the EC Case. YTT was assigned to represent Madam Kwong in both actions. The cases were then reassigned to LTW on 10 January 2006. On 21 April 2006, the PI Case was settled upon Madam Kwong’s acceptance of a sanctioned payment. On 21 June 2006, the EC Case was reassigned to M&C, until the legal aid certificate was discharged on 25 February 2008. Madam Kwong’s appeal against the discharge of the legal aid certificate was dismissed by the Registrar of the High Court on 3 July 2008.
22. From April 2009 to April 2011, YTT, LTW and M&C had separately indicated their agreements to the Director’s assessment of their costs. As the costs of the EC Case formed a first charge on the damages awarded in the PI Case, the Director had, between 2011 and 2012, tried to seek consent from Madam Kwong on the assessment of costs. However, Madam Kwong did not agree on the costs assessed by the Director despite repeated requests. In March 2016, Madam Kwong made counter-offers on the costs payable to YTT, LTW and M&C, which were considered to be too low and rejected by the said firms. This gave rise to the Taxation Proceedings.
23. Ms Lui emphasized that the EC Case has remained stagnant for over 9 years since Madam Kwong’s legal aid certificate was discharged.
Interpretation of Regulation 9(3) of the LAR
24. In support of the Application, Ms Lui agreed with Mr Clement that O 62, r 9D of the RDC should not be followed. Ms Lui argued that the applicable provision should be Regulation 9(3) of the LAR, under which the Bill was brought. For easy and better understanding of the arguments that followed, Regulation 9 is reproduced below:-
“(1) Subject to the provisions of this regulation, a person whose certificate is revoked shall be deemed never to have been an aided person in theproceedings to which the certificate related, and a person whose certificate is discharged shall, from the date of discharge, cease to be an aided person in these proceedings.
(2) Upon receipt by him of notice of revocation or discharge of a certificate by the Director or upon revocation or discharge of a certificate by the court, the retainer of any solicitor and counsel acting for the aided person in proceedings to which the certificate relates shall forthwith determine.
(3) Upon determination of proceedings under this regulation—
(a) the costs of the proceedings to which the certificate related, incurred by or on behalf of the person to whom it was issued, shall, as soon as practicable thereafter, be taxed or, as the case may be, assessed in accordance with the provisions of these regulations;
(b) the Director shall remain liable for the payment of any costs so taxed or assessed.
(4) (Repealed 60 of 1981 s. 4)
(5) Where a certificate has been revoked or, where aid was granted under the Supplementary Legal Aid Scheme, discharged, the Director shall have the right to recover from the person to whom the certificate was issued the...