CHEUNG CHAU SHING v. PES (HONG KONG) LTD

DCEC 1014/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1014 OF 2017

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DECISION

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1.  By summons dated 11 October 2017, the applicant seeks an order that:-

(1)     The Applicant be granted “further periodical payments for a period proven by provision of further sick leave certificates to the [r]espondent beyond 24 months sick leave period”;

(2)     The respondent shall pay such further periodical payments to the applicant accordingly.

2.  The application was made expressly under section 10(5) of the Employees’ Compensation Ordinance.  A supporting affidavit was filed at the same time.

3.  The accident took place on 28 July 2015.  The applicant confirmed at this morning’s hearing that he had received periodical payments from the respondent for the period from August 2015 to July 2017.  He however has been certified by doctors to require sick leave beyond this 24-month period.  These sick leave certificates were exhibited to the supporting affidavit.  Leave is therefore required to extend the period during which periodical payments are to be made under section 10(5).  And that is the reason why he seeks the order as framed, such that the respondent is required to pay periodical payment upon production of any further sick leave certificates.

4.  The respondent resists the application made under section 10(5), relying on the Court of Appeal decision in Poon Chi Kwong v Poon Wing Kee (Metal) (Work) CACV 378/2003, 7 May 2004 and also the decision in Ho Shuk Man v Sunflower Travel Service Ltd DCEC 618/2009, 12 February 2010.

5.  In reply, the applicant stressed at the hearing that he is the breadwinner of the family, with young children to look after.  And he has been in dire financial needs since the respondent has ceased periodical payments in July 2017.

6.  The authorities state clearly that the relief under section 10 is a final one and can only be granted after trial of the issue and after the court hears evidence in the usual way, including any expert evidence which may be adduced.  Here, what the applicant has done is that he has taken out an interlocutory application, relying on affidavit evidence, to seek the final relief in section 10(5).  That is erroneous – see Poon Chi Kwong at §§20 and 21.  For that reason, the applicant’s summons must be dismissed.

7.  However, as remarked in the hearing, here is a case where there is no dispute to (a) the occurrence of the accident, and (b) the employment relationship between the applicant and the respondent.  The applicant was not a casual worker and had been receiving periodical payments for two years already, so it is not expected that there will be any significant dispute as to his monthly earnings.

8.  Further, section 10(2) provides for a presumption in favour of sick leave certificates given by registered doctors.

9.  In the circumstances, there seems to be a lot to be said for the court to exercise the discretion to extend time beyond the two-year period under section 10(5) when the issue comes to be decided in the future.

10.  The respondent should consider its position in light of the above.  Should the applicant choose to take out any application for interim payment under Order 29, rule 10 of the Rules of the District Court, any refusal by the respondent would be scrutinised in view of the above circumstances and may have an impact on its costs position.

11.  For the above reasons, I dismiss the applicant’s summons.

12.  Costs should usually follow the event and the respondent asks for costs of the summons, to be taxed if not agreed.

13.  However, given what I have said above, I am prepared to depart from the usual costs position and make no order as to costs of the summons.