TING PUI LEUNG v. ETERNAL EAST CROSS-BORDER COACH MGT LTD

DCEC996/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 996 OF 2005

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D E C I S I O N

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1.  This is an application by the respondent against the applicant to file and serve an affirmation stating whether the applicant has in his possession, custody or power or has at any time had in his possession, custody or power the documents listed in the schedule, and if the said documents had been but are not now in the applicant’s possession, custody or power stating, when the applicant parted with the same and what has become of the same.

2.  The respondent also asks for production of these documents, if any.  The respondent further asks for this proceedings not to be warned before 10 November 2006 and the costs of and occasioned by this application be to the respondent and borne by the applicant, to be taxed if not agreed.

3.  In order to determine this application I have to consider, first, whether or not there is sufficient evidence that these documents exist and are not yet disclosed, second, that these documents are relevant to the issue in question and, thirdly, whether there is sufficient evidence that these documents are in the possession, custody or power of the applicant.

4.  The main ground of objection by the applicant is that these documents are irrelevant to the issue of assessment of compensation.  Mr Lee, for the applicant, made reference to section 11 of the Employees’ Compensation Ordinance which spells out the method of calculating the monthly earnings of an employee at the time of the accident, which makes reference to the earnings during the previous 12 months if the employee had been so employed by the same employer.  In a gist, Mr Lee said the documents asked for by the respondent is beyond this 12-month period and, therefore, irrelevant to the issue of assessment of compensation.  Miss Hui, for the respondent, on the other hand, submitted that it is relevant and she made reference to section 9(1A) which says that the injured person’s qualification, previous training and experience could be relevant in assessing the amount of compensation.

5.  After considering submissions from both sides, I am satisfied that there is a prima facie case for relevancy and possession of these documents.  Whether or not the applicant indeed has possession, custody or power of these documents, and whether or not they are relevant to the issue, depends on what would be deposed in the affidavit.

6.  Therefore, I will order the applicant do, within 14 days from the date of order, to file and serve the affirmation the respondent is asking for.  I will not order for the production of these documents, if any, depending on what the applicant says in the affirmation, it is up to the respondent to decide whether or not it needs to take out a subsequent application for the production of these documents.

7.  The trial of the above proceedings is not to be warned before 10 November 2006.

8.  Costs of this application to be reserved and applicant’s costs be taxed in accordance with the Legal Aid Regulations.