TSOI CHUNG KAK v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD

DCMP 744 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 744 OF 2007

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REASONS FOR DECISION

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1.  The Plaintiff (“Mr Tsoi”) applies by way of an Originating Summons for leave to issue proceedings against the Employees Compensation Assistance Fund Board under section 25 of the Employees Compensation Assistance Ordinance (Cap 365) (“the Ordinance).   He seeks to claim the Board as if it were the employer for employee’s compensation in relation to an injury he suffered while working at a house in Discovery Bay in March 2005. 

2.  Section 25 of the Ordinance provides as follows:

“	(1)	This section applies to any claim against an employer for compensation where –
		(a)	the employer –
			(i)	cannot be identified, or if identified, cannot be located;
				…
			(iv)	for any reason, cannot be served with proceedings, and
		(b)	no policy of insurance is known to be in force in relation to the employee.
	(2)	Subject to this section, proceedings for any claim against an employee to which this section applies may issue against the Board as if it were the employer.
	(3)	Proceedings against the Board under this section, shall not issue unless the court is satisfied, on application made on notice to the Board, as to the matters specified in subsection (1)(a) and (b).
	(4)	Where proceedings are brought against the Board under this section, the rights and liabilities of the employer in respect of the compensation the subject of the proceedings are vested and transferred to the Board.”

3.  This is not the substantive hearing of the Originating Summons, but the hearing of the Board’s application to strike out the Originating Summons on the usual basis that (a) he has no reasonable cause of action (for issuing proceedings), (b) his claim (for issuing proceedings) is frivolous and vexatious, and (c) it is an abuse of process to apply to issue proceedings against the Board.

4.  In support of the application, the Board through its Counsel, Ms Lau submits that Mr Tsoi’s application for leave to issue proceedings is simply pre-mature and should be struck out since:

(1)	On a proper construction of this provision, it requires the applicant to provide sufficient evidence to satisfy the Court the matters under section 25(1)(a) at the time of the issue of an application for leave.
(2)	In the present case, the evidence filed by Mr Tsoi at the time of the issue of the Originating Summons does not show that he had taken all reasonable steps to identify or locate the employer.  In the premises, he cannot satisfy the Court as required under section 25(3) of the Ordinance that proceedings shall be issued against the Board. His application is thus bound to fail and should be struck out.
(3)	In any event, even by now, the evidence filed by Mr Tsoi still does not show that he had taken all reasonable steps to identify or locate the employer.  As such, his application for leave to issue proceedings should also be struck out.

5.  On the other hand, Mr Tsoi’s counsel, Ms Cheng, submits that the evidence shows that the requirements are or are arguably met either at the time of the issue of the Originating Summons or by now.

6.  It is however trite and common ground that the Court should only exercise its summary power to strike out an application for relief in a plain and obvious case:  Hong Kong Civil Procedure 2008, paras 18/19/4 – 18/19/10, 18/19/13.

7.  In light of the above contentions, the central questions that I need to determine are:

(1)	On a proper construction of section 25(3) of the Ordinance, what is the time of reference it requires the applicant to satisfy the Court that the matters under section 25(1)(a) are met.
(2)	Depending on the answers to (1) above, whether in the present case, the evidence can arguably satisfy the Court at the relevant time that the employer cannot be identified or cannot be located.

What is the time of reference under section 25(3) of the Ordinance

8.  Section 25(3) provides as follows:

“	Proceedings against the Board under this section, shall not issue unless the court is satisfied, on application made on notice to the Board, as to the matters specified in subsection (1)(a) and (b).”

9.  When construing a statutory provision, if the words are clear and unambiguous, one should construe it in accordance to its plain words and meaning, and should not read any additional words into it, unless the interpretation would lead to clear anomaly:  Craies on Legislation (8^th ed), paras 17.1.1-17.1.5, 17.1.8.

10.  In my judgment, the plain meaning of the words “on application made on notice to the Board” in section 25(3) refers to the time of the substantive hearing of the application for leave to issue proceedings against the Board.  This is so because, in my view, these words when read together with the opening words “proceedings under this section shall not issue”, refer to the time of actual determination on whether leave should be granted or not for the issue of the proceedings.  That is, the time of the substantive hearing of the application. 

11.  Not only is this interpretation consistent with the plain and clear meaning of the words, it also makes reasonable and logical sense since it will only be at the time of the substantive hearing that all the evidence before the Court is complete, and thus the Court is in a position to decide whether the evidence establishes the matters under section 25(1)(a). 

12.  In my judgment, it could not have been the intention of the legislature that the time of reference as to whether there is sufficient evidence of proof is at the time when the application is taken out:  First, if the application is opposed, the Board would only be able to provide evidence after the application has been taken out.  Secondly, an applicant is fully entitled to then file further evidence in reply to the Board’s evidence in opposition.  The legislature could not have intended that the Court should disregard all such subsequently filed evidence when determining whether to grant leave for the issue of proceedings against the Board.

13.  For the above reasons, I conclude that the Court should only assess the evidence as at the time of the substantive hearing of the application for leave (but not at the time when the application is taken out) to determine whether the Applicant can satisfy the Court that the employer cannot be identified or located.

14.  In the premises, I reject Ms Lau’s submission that the Originating Summons should be struck out simply because Mr Tsoi did not have sufficient evidence to prove, at the time when the Originating Summons was issued, that the employer cannot be identified or located.   Even if, and I make no finding on this, Mr Tsoi did not have such sufficient evidence at that time as submitted by Ms Lau, that is not a valid ground to strike out the Originating Summons. 

Should the Originating Summons be in any event struck out by now given the state of the evidence

15.  Ms Lau also submits that the evidence as it is now also does not show that Mr Tsoi has taken all reasonable steps to identify or locate the employer, and thus the application should be struck out in any event. 

16.  In order to deal with Ms Lau’s submissions, it is necessary for me to set out below in summary Mr Tsoi’s evidence that is now before me in support of his case that his employer cannot be identified, located or served with the proceedings.

17.  Mr Tsoi had been working as a casual worker in construction sites.  In 2004, he had once worked with a co-worker known as Ah Shing in Mongkok and Western District for a particular boss.   He was introduced to Ah Shing by his friend Ah Chung.  For these occasions, Mr Tsoi collected the wage payment in cash from the boss at his shop at Ground Floor, No. 14, Western Street, Western District, Hong Kong.  He understood that the boss lived at the rear portion of this shop.

18.  On about 9 March 2005, Ah Shing introduced him to work as a causal worker for the same boss at a house in Discovery Bay.  The next day, they met each other at the Tung Chung MTR station before going to the site together.  He was joined by Ah Chung and another worker at the MTR station.

19.  He saw the employer, who was a medium built male of about 50 years old at the house on that day.  It was the same boss he saw previously when he worked at Mongkok and Western District. 

20.  He suffered an injury to his right ring and little fingers while working at the house.  He did not go to attend medical treatment until after work that evening.  He was then granted seven days sick leave.

21.  Ah Shing gave him the mobile numbers of the employer, and he tried to contact the employer through the two mobile telephone numbers.  He managed initially to talk to the boss over the phone to discuss about the payments for the sick leave, but later the numbers were no longer in use and he could not find the boss.

22.  Upon making inquiries, he was told by an ex co-worker called Ah Kit that the employer was “祥強裝修公司”.  He also went to the shop in Western District for about 10 times trying to collect the sick leave pay, but he could find no one there.  In late 2005, the shop became a beauty saloon. 

23.  In late March 2005, he sought assistance from the Labour Department. After some investigations, the Labour Department was also unable to contact the employer.  It was also found out that there was no business registration of a business known as “祥強裝修公司”.  There was also no Notification of Construction Work available in the Labour Department’s file concerning the construction work at the Discovery Bay house, and thus no record of whom the contractor was.

24.  Further, it was recorded in the brief inspection report of the Labour Department a fixed line telephone number, after apparently the labour officer had made certain interviews with some informants. 

25.  Mr Tsoi through his solicitors had later written to various telephone companies in Hong Kong to inquire about the personal information of the subscribers to the fixed line telephone number and the two mobile phone numbers mentioned above.  The telephone companies indicate by reply that they would not disclose any such information unless there is a court order.  Mr Tsoi has since taken out four applications seeking discovery against these telephone companies. These applications are pending.

26.  After being told by the Board’s solicitors that the registered owner of the Discovery Bay house is one Joy Fine International Investment Ltd, Mr Tsoi’s solicitor obtains information from Joy Fine that the contractor it used for the work is a Mr Tsui Chun Yuen but there are no documents concerning the contracting with Mr Tsui Chun Yuen.  Mr Tsoi says he has not heard of this name before.

27.  At the same time, it was found out that the registered owner of the Western District Shop is a Mr Tsui Chi Keung.  Upon inquiries made by Mr Tsoi’s solicitors, Mr Tsui Chi Keung informed them that the shop was rented to one Tsui Chun Yuen between August and September 2004, but there was no written tenancy agreement.    Mr Tsui Chi Keung did not respond to the other inquiries concerning the home address, mobile phone number of Mr Tsui Chun Yuen, and whether he has any kinship with Mr Tsui Chun Yuen.

28.  In light of the above evidence, Ms Lau submits that even by now, Mr Tsoi still cannot show that he has taken all reasonable steps to identify or locate the employer.  This is so because Mr Tsoi ought to have at least asked his colleagues whether they knew the names of the two Mr Tsui’s and whether any one of the two Tsui’s was known to them as the employer.

29.  I disagree with Ms Lau’s submissions for the following reasons:

(1)	In my judgment, in using the words “unless the court is satisfied” in the provision, the legislature intended to give the Court a free hand to assess all the evidence presented before it by an applicant to decide whether the evidence is sufficient to prove, on a balance of probabilities, the matters listed under section 25(1).  The provision does not limit or prescribe the Court that it should be so satisfied only if an applicant has taken all reasonable steps to identify or locate the employer as suggested by Ms Lau.  Whether he has taken all reasonable steps in the circumstances of the case is but only one of the factors (and perhaps at times an important factor) that the Court could consider whether the matters under section 25(1)(a) are proved.
(2)	As such and given the circumstances of the present case as set out above, I am of the view that it is at least arguable at this stage that, even without the further inquiry with his colleagues as suggested by Ms Lau, the Court could be satisfied that the employer cannot either be identified, located or properly served with a proceedings.
(3)	Moreover, in light of the four pending third party discovery applications, Mr Tsoi is still in the process of gathering potential evidence for the substantive hearing of the Originating Summons. It therefore cannot be said at this stage that his application is bound to fail at the substantive hearing for lack of sufficient evidence to satisfy the Court that the employer cannot be identified or located.

30.  I therefore do not accept that it is at this stage clear and obvious that Mr Tsoi must fail at the substantive hearing of the Originating Summons.  I will not strike it out.

31.  Given that this is only the striking out application, the Board is of course still entitled to fully argue at the substantive hearing of the Originating Summons why Mr Tsoi’s evidence cannot prove the matters under section 25(1)(a).

Conclusion

32.  For the reasons set out above, I dismiss the Board’s application to strike out the Originating Summons. 

33.  I further grant an order nisi that costs of this application be to Mr Tsoi to be taxed if not agreed, with certificate for counsel, and that Mr Tsoi’s own costs be taxed in accordance with the legal aid schedule.