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DCEC 111/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 111 OF 2015
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BETWEEN
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LEE YUI KAI（李銳佳） |
Applicant |
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and
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TD CO, LIMITED |
1st Respondent |
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TO HUNG KEI trading as
WAH HEI DECORATION ENGINEERING CO |
2nd Respondent |
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| Before: Deputy District Judge Liu Man Kin in Chambers (Open to Public) |
| Date of Hearing: 2 February 2016 |
| Date of Decision: 2 February 2016 |
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DECISION
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1. There are 2 summonses before me, both were taken out by the applicant on 15 January 2016. One summons concerns the 1st respondent, the other concerns the 2nd respondent.
The facts
2. The applicant sought employees’ compensation against the 1st and the 2nd respondents by filing his application on 21 January 2015. The applicant’s case is that on 4 July 2014, personal injury by an accident (“the Accident”) arising out of and in the course of employment was caused to him, a plasterer employed by the respondents.
3. The 1st respondent filed its answer on 11 February 2015, in which the 1st respondent denied having any employment relationship with the applicant.
4. The 2nd respondent filed his answer on 24 August 2015, in which the 2nd respondent denied having employment relationship with the applicant at the time of the Accident.
5. On 11 January 2016, the applicant’s solicitors wrote to the 1st respondent and the 2nd respondent’s solicitors respectively to request for the following further and better particulars (“the FBPs”) of the employees’ compensation insurance policy (“the EC Policy”) under which they were insured:-
(a) name of the insurer and the policy number;
(b) name(s) of the insured and the period of insurance;
(c) whether the policy was in force at the time of the Accident.
6. The applicant’s solicitors also sought the production of the insurance policy pursuant to s 44A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).
7. The 1st respondent did not give any reply.
8. On 13 January 2016, the 2nd respondent’s solicitors replied and said:-
“We are instructed that at the time of the alleged accident, the Applicant was not an employee of our client and therefore our client did not take out any insurance policy in relation to the Applicant. We are further instructed that at the time of the alleged accident, our client did not undertake any renovation work with any employee working under his employment and therefore there was no insurance policy covering the date concerned.”
9. Neither the 1st respondent nor the 2nd respondent has acceded to the request for production of the EC Policy made by the applicant pursuant to ECO s 44A.
Summons concerning the 1st respondent
10. In the summons concerning the 1st respondent, the applicant seeks:-
(a) an order requiring the 1st respondent to supply the FBPs requested by the applicant on 11 January 2016 and verify its answer by a statement of truth (“the FBPs Order”); and
(b) an order requiring the 1st respondent to produce for inspection the EC Policy under which the 1st respondent was covered (“the Production Order”).
11. During the hearing, Mr Wong for the applicant abandoned the application for the FBPs Order. Hence, it would only be necessary for me to consider the application for the Production Order.
12. I am satisfied that the Production Order should be made.
(a) ECO, s 44A provides:-
“An employer insured under a policy of insurance issued for the purposes of this Part shall, within 10 days after receiving the written request of an employer or other person having a claim against the employer, produce for inspection to the employee or other person or his agent the policy of insurance and all other documents relating to the policy.”
(b) The applicant’s solicitors made a written request for production on 11 January 2016.
(c) I note that the 1st respondent denied that it was the applicant’s employer at the time of the Accident. However, the denial itself cannot be a valid ground in resisting the application for the Production Order. See Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd & Another, CACV 86/2006, 28 July 2006, at [4].
13. On the question of costs of this summons, since whether the 1st respondent was the applicant’s employer at the time of the Accident is an issue in dispute, in the light of Chung Yuen Yee [6], I would order costs in the cause.
Summons concerning the 2st respondent
14. In the summons concerning the 2nd respondent, the applicant seeks:-
(a) an order requiring the 2nd respondent to supply and answer the FBPs requested by the applicant on 11 January 2016 and verify its answer by a statement of truth; and
(b) an order requiring the 2nd respondent to produce for inspection the EC Policy under which the 2nd respondent was covered.
15. Mr Wong also abandoned the application for the FBPs in this summons and only pursued the application for an order for production of documents.
16. I am aware of the answer provided in the 2nd respondent’s solicitors’ letter dated 13 January 2016, and Mr Chung for the 2nd respondent told me that the 2nd respondent was willing to verify that answer by an affirmation. However, what has been said by the 2nd respondent in the letter dated 13 January 2016 is (a) that the 2nd respondent did not take out any insurance policy in relation to the applicant; and (b) there was no insurance policy covering the date concerned. The 2nd respondent is not saying that he does not have any EC Policy and therefore has nothing to produce. See Chung Yuen Yee [5].
17. In the circumstances, I would make an order requiring the 2nd respondent to produce the EC Policy under which the 2nd respondent was covered or to make an affidavit or affirmation stating that they have never had any EC Policy.
18. As to the costs of this summons, since whether the 2nd respondent was the applicant’s employer at the time of the Accident is an issue to be determined at trial, following Chung Yuen Yee, I would order costs in the cause.
Disposal of the 2 summonses
19. In respect of the summons concerning the 1st respondent, I would order:-
(a) the 1st respondent do produce for inspection the employees’ compensation insurance policy covering the 1st respondent within 21 days;
(b) costs of the summons be in the cause; and
(c) the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
20. In respect of the summons concerning the 2nd respondent, I would order:-
(a) the 2nd respondent do produce for inspection the employees’ compensation insurance policy covering the 2nd respondent or make an affidavit or affirmation stating that they have never had any employees’ compensation insurance within 21 days;
(b) costs of the summons be in the cause; and
(c) the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
21. I thank parties for their helpful submissions.
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( Liu Man Kin )
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Deputy District Judge |
Mr KY Wong, of Alan Wong & Co, for the applicant
The defendant represented by its director Ms Chan Yee Man
Mr Nelson Chung, of Hon & Co, for the 2nd defendant
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