SO YUK KAM v. LIU, CHAN & LAM (a firm) AND ANOTHER

CACV 105/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 105 OF 2014

(ON APPEAL FROM DCCJ 1599/2012)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court):

A. INTRODUCTION

A1. Overview

1.  On 20 June 2006, the plaintiff suffered serious personal injuries while carrying out renovation works in the course of his employment as a welder at a construction site in Yuen Long, causing him to be permanently partially incapacitated in the right shoulder (“the Accident”).  After the Accident, he was unable to return to his former occupation as a welder.

2.  On 2 March 2007, Ms Selina Hui Lap Yee (“Ms Hui”), a solicitor of Messrs Liu Chan & Lam (“LCL”), was assigned by the Legal Aid Department (“LAD”) to act for the plaintiff in all the concerned proceedings arising from the Accident, including the action for employees’ compensation in DCEC 30/2008 (“the EC Action”).  LCL was replaced by Messrs Szwina Pang, Edward Li & Company (“SPEL”), another firm of solicitors assigned by the LAD to the plaintiff, in around May 2011.

3.  Although on 19 December 2008 the plaintiff obtained an award in the EC Action in the sum of HK$277,143.00 (“the EC Award”), it remained an empty judgment because the plaintiff’s employer, Lung Hing Transportation Limited (“Lung Hing”) turned out to be insolvent and Lung Hing’s insurer underwriting the employees’ compensation had not been identified.

4.  On 13 December 2010, the plaintiff made an application (“the Section 16 Application”) to the Employees’ Compensation Assistance Fund Board (“the Board”) for payment from the Employees’ Compensation Assistance Fund (“the Fund”) under section 16 of the Employees’ Compensation Assistance Ordinance[1] (“ECAO”).  The Board rejected the Section 16 Application on 2 March 2012.

5.  On 16 May 2012, the plaintiff brought the proceedings below against :

(1)     LCL as the 1^st defendant for professional negligence as his solicitors in handling his claims for employees’ compensation; alternatively

(2)     the Board, as the 2^nd defendant, under section 24 of the ECAO in refusing the Section 16 Application.

6.  The trial took place before Deputy Judge R Lai on 27 to 30 May 2013.  On 11 March 2014, the learned Judge handed down his judgment (“the Judgment”[2]) in which he found that LCL was liable for professional negligence as contended by the plaintiff and the Board was entitled to reject the Section 16 Application.  He further found that the plaintiff could have recovered his employees’ compensation, interest and costs directly from Lung Hing’s insurer but for LCL’s negligence in not requesting Lung Hing or applying to court for production of the relevant policy under section 44A of the Employees’ Compensation Ordinance[3] (“ECO”).  He then entered judgment against LCL in the sum of HK$618,663.00 with interest.

A2. LCL’s major arguments on appeal

7.  LCL now appeals against the Judgment on both liability and quantum.

8.  On liability between the plaintiff and LCL, LCL’s major argument is that the Judge erred in his finding that at the time of the Accident the plaintiff’s employer, Lung Hing, had taken out an employees’ compensation insurance policy; and that LCL was negligent in failing to seek discovery against Lung Hing under section 44A of the ECO of the said policy so as to ascertain the particulars of the insurer concerned.  As between the plaintiff and the Board, LCL argued that the Judge erred in finding that the Board was entitled to reject the Section 16 Application.  LCL contended that judgment should be entered in favour of the plaintiff against the Board instead.

9.  On quantum, LCL contended that the Judge erred in his assessment of damages suffered by the plaintiff.  He should have assessed damages on the basis of the plaintiff’s loss of opportunity to attempt to recover directly from the insurer, if there was one.

A3. Locus

10.  Mr Wong SC, for the Board, took a preliminary point on locus.  He referred to the fact that in this appeal LCL purported to seek judgment for the plaintiff against the Board when there is no appeal by the plaintiff against the Judge’s decision that the Board was entitled to reject the Section 16 Application.  That is to say, the plaintiff is plainly not claiming, nor is he seeking any judgment, against the Board in this appeal.  Mr Wong asked rhetorically : what locus does LCL have in seeking judgment against the Board purportedly for the plaintiff by running a case which is directly against the plaintiff’s position on appeal?

11.  With respect, we think Mr Wong’s view on locus is too restrictive.  When, as is here, a plaintiff has alternative claims against two different defendants, if the losing defendant considers the court below has erred in entering judgment against him and the other defendant ought to have been held liable instead, he plainly has the locus to bring an appeal, seeking from the Court of Appeal an order that judgment be entered against that defendant, irrespective of the plaintiff’s stance to the contrary.  We reject Mr Wong’s point on locus.  We hold that LCL has locus to bring this appeal to seek an order that judgment be entered for the plaintiff against the Board.

B. BACKGROUND

12.  To examine the validity of LCL’s major arguments raised in this appeal, it is necessary to go into the background leading to the proceedings below in greater detail focusing on :

(1) the existence of Lung Hing employees’ compensation policy;

(2) the steps taken by LCL to ascertain the identity of Lung Hing’s insurer, if any; and

(3) the reasons for the Board to reject the Section 16 Application.

B1. Initial inquiry by LCL with the Labour Department

13.  As required by section 14 of the ECO as a prerequisite to a claim for employees’ compensation, the plaintiff on 4 September 2006 sent a notification of accident informing the Labour Department (“LD”) of the Accident (“Form 1”).  In the Form 1, the plaintiff named a Mr Lau Kam Yuen (“Lau”) as his employer.

14.  Section 15 of the ECO mandates an employer to send to the LD a notice of an accident resulting in death or total or partial incapacity to an employee in prescribed form within the time stipulated (“Form 2”).  On 19 September 2006, an unsigned From 2 was received by the LD.  The Form 2 named Lung Hing as the employer but gave no information about Lung Hing’s insurer at the time of the Accident.  It is not disputed that the LD did not know who completed it.  At the trial below, no evidence had been adduced as to who had submitted this unsigned Form 2 to the LD.

15.  On 3 April 2007, LCL made an initial inquiry with the LD in connection with the Accident.  In particular, LCL requested the LD to provide a copy of Form 2, if any.  The LD replied on 17 April 2007 but for some unknown reasons did not provide a copy of the unsigned Form 2.[4]

B2. Inquiry by the LD

16.  By a letter dated 15 October 2007, the LD requested Lung Hing to provide information about the Accident, including a copy of the employees’ compensation insurance policies taken by Lung Hing as at 20 June 2006 for its employees and its sub-contractors’ employees.

17.  Lung Hing replied by a letter dated 31 October 2007 written by its director, Mr Chan Siu Po (“Mr Chan”), stating that “there is no employees’ compensation insurance in relation to the renovation matter on 20^th June 2006” (“Mr Chan’s Letter”).

B3. Direct inquiry by LCL with Lung Hing

18.  On 19 January 2008, LCL wrote a pre-action letter to Lung Hing as required by the pre-action protocol of personal injury proceedings in the District Court, seeking the identity of Lung Hing’s insurer.  No reply was received from Lung Hing.

B4. Inquiry by the Board

19.  On 8 January 2008, the plaintiff commenced the EC Action against both Lau and Lung Hing as employer.  LCL served a notice of proceedings in respect of the EC Action on the Board on 23 January 2008, leaving the section on “insurance information” blank.

20.  The Board then wrote to the Hong Kong Federation of Insurers (“HKFI”) on 23 January 2008, requesting circulation of the details of the EC Action amongst HKFI’s members with a view to ascertaining whether Lung Hing had taken out employees’ compensation insurance.  However no response was received from the HKFI’s members.

21.  The Board also wrote to LCL on 23 January 2008 to enquire whether LCL knew of any action taken by the LD against the plaintiff’s employer for failure to take out employees’ compensation insurance and whether any effort had been made in investigating the insurance status for the plaintiff’s claim.  As will be seen shortly, LCL replied to LD only on 18 September 2008, nearly eight months later.[5]

B5. LCL’s further enquiry with Lung Hing

22.  On 12 February 2008, Lung Hing filed its answer in the EC Action, denying that it was the plaintiff’s employer at the time of the Accident.  LCL then wrote to Lung Hing’s solicitors, Lam & Partners (“L&P”) on 6 March 2008 enquiring (for the purposes of answering the Board’s letter of 23 January 2008) whether Lung Hing had any employees’ compensation insurance policy as well as any other insurance policy in respect of its common law liability.  L&P did not answer.

23.  On 26 August 2008, Mr Chan filed his witness statement in the EC Action (“Mr Chan’s Witness Statement”).  He stated that he was at the site when the Accident happened.  It was the first time he saw the plaintiff.  He went on to say :

“7. … Later, when [Lau] arrived at the lorry car park and told me that he did not purchase any employees compensation insurance, he asked me if I had purchased employees’ compensation insurance for employees. I said Lung Hing purchased employees’ compensation insurance for Lung Hing’s employees. He then asked me whether he could use the name of Lung Hing to claim employees’ compensation, I told him that I have to ask my insurance agent. [Lau] then accompanied his worker to seek medical treatment.

8. I enquired Lung Hing’s insurance agent the next day, he told me we cannot do this otherwise it is fraud to the insurance company and is a criminal offence, therefore I called [Lau] and denied his request.

…

11.     In about October 2007, I received a letter from the [LD] enquiring the injury of [the plaintiff] sustained on 20^th June 2006. ... [But Lau] denied Ngai Shing was the employer and said Lung Hing was the employer, therefore I replied to [the LD] to clarify the truth. …”

24.  By a letter dated 18 September 2008 addressed to L&P, LCL repeated its enquiries set out in the letter of 6 March 2008 as to whether Lung Hing had taken out any insurance policy and particulars thereof.

25.  On the same date, LCL replied to the Board that no action had been taken by the LD against Lau and Lung Hing for failure to take out employees’ compensation insurance and that both Lau and Lung Hing had not provided the identities of their respective insurer.

26.  By a letter dated 8 October 2008, L&P answered LCL’s enquiries :

“1. As mentioned in paragraph 7 of our client’s witness statement dated 18^th August 2008, our client has all along taken out insurance policy to cover its liability under Employees’ Compensation Ordinance and its common law liability for its employees but not for the Applicant in the captioned proceedings who has never been the employee of our client.

2. As mentioned in paragraph 11 of our client’s witness statement dated 18^th August 2008, the Labour Department has investigated the matter and made enquiries with our client.  We are instructed that after investigation, the Labour Department was satisfied that our client was not the employer of the Applicant in the captioned proceedings and hence no action has ever been taken by the Labour Department against our client.”

LCL informed the Board of L&P’s said reply on the following day.

B6.    The EC Award

27.  The trial of the EC Action took place on 16 and 17 December 2008.  In a judgment handed down on 19 December 2008, District Judge Yung found that at the time of the Accident Lung Hing was the plaintiff’s employer and was thus liable to pay him the EC Award.

28.  As said, the EC Award was an empty judgment because Lung Hing turned out to be insolvent and Lung Hing’s insurer underwriting the employees’ compensation insurance at the time of the Accident had not been identified.

B7.    Further correspondence between LCL and the Board

29.  On 25 March 2009, the Board wrote to LCL asking about what steps had been taken to recover payment from Lung Hing.  It also reminded LCL that the plaintiff had to comply with all the eligibility criteria for making a Section 16 Application.  On 7 July 2009, the Board wrote to LCL again to follow up on the actions taken to enforce the EC Award.

30.  In the meantime, LCL, on behalf of the plaintiff, commenced DCPI 1310/2009 against Lau and Lung Hing on 6 June 2009.[6]  It also on 18 December 2009 commenced HCCW 727/2009 to wind up Lung Hing based on the EC Award.  Subsequently on 24 February 2010, the court made a winding-up order against Lung Hing and appointed liquidators (“the Liquidators”).

31.  LCL then informed the Board of the winding-up order against Lung Hing on 3 March 2010.  It also sought confirmation from the Board on payment under the ECAO.  On 8 April 2010, the Board replied to LCL, stating that as Lung Hing was insured, it was premature for the plaintiff to apply for payment under the ECAO.  By a letter dated 14 April 2010, the Board again wrote to the HKFI requesting circulation of details of DCPI 1310/2009 amongst its members.

B8. LCL’s enquiries with Lung Hing and the Liquidators

32.  Separately, by letters dated 13 and 15 March 2010, LCL wrote to Lung Hing, the Liquidators and Lung Hing’s former shareholders and officers :

“We shall be grateful if you could kindly let us know the following information and provide a copy of the said insurance policy to us within the next 7 days:-

(a) name of insurer and policy number of the said insurance policy;

(b) name(s) of insured(s) and period of insurance;

(c) whether the said policy was in force at the time of the subject accident.”

33.  By a letter dated 18 March 2010, the Liquidators replied that they were unable to locate the directors or any books and records of Lung Hing.

B9.    Events leading to the Section 16 Application

34.  On 4 May 2010, the Board’s solicitors informed LCL that the plaintiff was not eligible for a section 16 application because Lung Hing’s insurer was liable and the difficulty in ascertaining the insurer’s identity as provided by LCL was not something the Board could take into account under section 16 of the ECAO.

35.  On 6 May 2010, LCL wrote to the LD enquiring whether Lung Hing had taken out employees’ compensation policy to cover the plaintiff. On 12 May 2010, the LD replied that Lung Hing had not presented any insurance policy to the LD.  It also provided a copy of the unsigned Form 2 to LCL.

36.  On 7 September 2010, LCL sought specific discovery of Lung Hing’s employees’ compensation insurance policy from L&P.  On 15 September 2010, L&P replied :

“We have never mentioned in our said letter [dated 8 October 2008] that we are/were in possession of any insurance policy of our former client, nor have we mentioned therein that we had knowledge of the name of the insurer of our former client.

…

We hereby inform you that we have never been in possession of any insurance policy of our former client, nor do we have any knowledge of the name of the insure of our former client.”

37.  On 20 September 2010, Mr Lam San Yin of L&P filed an affirmation in respect of the specific discovery application, stating :

“9. Before issuing the Summons, the only document I received from the Plaintiff’s solicitors was a letter dated 15^th March 2010 demanding my firm to produce the subject insurance policy and disclose the name of the insurer etc;

…

11. The only reason for the Plaintiff’s believing that my firm would be in possession of the subject insurance policy and would have correspondence with the insurer is by virtue of my firm’s letter to the Plaintiff’s solicitors dated 8^th October 2008… However I have never mentioned in the said letter that my firm are/were in possession of any insurance policy or copies thereof of Lung Hing, nor have I mentioned therein that my firm had knowledge of the name of the insurer of Lung Hing.

12. I cannot now recollect whether I had been provided with any insurance policy or copies thereof by Lung Hing for perusal in relation to [the EC Action].  I also have no knowledge or recollection of the name of the insurer of Lung Hing.  I verily believe that I have never been in possession of any insurance policy or copies thereof of Lung Hing.”

38.  LCL subsequently withdrew the specific discovery application.

39.  On 13 December 2010, LCL on behalf of the plaintiff made the Section 16 Application to the Board.

40.  By a letter dated 20 December 2010, LCL again attempted to contact Lung Hing’s former shareholders and directors about the employees’ compensation insurance policy taken out by Lung Hing.  No reply was received.

B10.  The Board rejected the Section 16 Application

41.  On 2 March 2011, the Board rejected the Section 16 Application.  The reasons in gist were :

(1) The Board considered:

(a) LCL’s letter to the Board on 9 October 2008 reporting L&P’s reply that Lung Hing had taken out an insurance policy; and

(b) Mr Chan’s Witness Statement made reference to existence of the employees’ compensation insurance policy.

(2) On the given evidence, the Board considered that an employee’s compensation insurance policy was in force at the time of the Accident and it was in force in relation to the plaintiff.

(3) LCL was aware by, at least, 18 September 2008 (date of Mr Chan’s Witness Statement) that Lung Hing had taken out an insurance policy, but it does not appear that LCL had taken steps to obtain the policy, whether by specific discovery or otherwise, during the proceedings, nor did LCL invoke section 44A of the ECO to demand production or inspection of the insurance policy from Lung Hing during the EC Action.

(4) In the circumstances, the plaintiff cannot rely on the wrong of LCL to say it was not reasonable for him to take proceedings against Lung Hing’s insurer now as the insurer can no longer be identified.

(5) Section 16(3) must be construed as requiring the applicant to take all reasonable steps that are necessary to enable him to take recovery proceedings against his employer’s insurer, and that must include taking steps to identify the insurer in the first place.

B11.  Subsequent enquiry by SPEL

42.  By a letter dated 16 May 2011, SPEL, having replaced LCL, asked the HKFI about information of employees’ compensation insurance policy taken out by Lung Hing covering the Accident.

43.  By another letter dated 19 July 2011, SPEL asked L&P for details and documents showing Lung Hing’s employees’ compensation insurance policy.  L&P replied on 11 August 2011 :

“There has bever been any correspondence between our firm and the insurer of Lung Hing in relation to the accident forming the subject matter of [the EC Action].

…

To the best of our knowledge, [Mr Chan] should have mentioned to us the existence of workmen compensation insurance in respect of Lung Hing’s employees, otherwise we would not have issued the said letter dated 8^th October 2008 to [LCL] and it would not have been so stated in paragraph 7 of [Mr Chan’s Witness Statement].  We have no recollection nor documents in respect of the circumstances as to how he mentioned to us the said matter.”

44.  By a letter dated 29 February 2012, the auditors of Lung Hing responded to SPEL’s enquiry that they did not have documents of insurance policies taken out by Lung Hing nor details of the employees’ compensation insurance policy; and did not have internal ledgers or documents pertaining to insurance expenses.

C. JUDGMENT BELOW

45.  In the Judgment, the Judge first identified the following main issues for his determination :[7]

(1) Whether Lung Hing had taken out employees’ compensation insurance which covered the plaintiff’s claim in the EC Action? (Issue 1)

(2) Whether LCL was negligence in not taking out applications to compel Lung Hing to disclose particulars of its employees’ compensation insurance policy? (Issue 2)

(3) Whether the Board was entitled to reject the plaintiff’s claim under the ECAO? (Issue 3)

C1. Issue 1

46.  On Issue 1, the Judge said :[8]

“…to determine whether Lung Hing had taken out employees’ compensation insurance covering the plaintiff’s claim is a two stage process. First, the court has to determine whether Lung Hing had taken out any employees’ compensation insurance at the material times. Secondly, if so, whether the employees’ compensation insurance taken out by Lung Hing covered the plaintiff’s claim.”

47.  After hearing arguments on burden of proof, the Judge applied the general rule that the party who asserts must prove and ruled that the burden rested on the plaintiff and the Board, who made the assertion, to prove that Lung Hing had taken out the employees’ compensation insurance policy for its employees at the material times[9] and that the burden was on LCL, who made the assertion, to prove that such insurance policy, if it existed, did not extend to the plaintiff.[10]

48.  The Judge found on balance of probabilities that Lung Hing had taken out employees’ compensation insurance for its employees at the time of the Accident.[11]  He placed particular reliance on what was said in Mr Chan’s Witness Statement,[12] as confirmed by L&P’s subsequent letters of 8 October 2008 and 11 August 2011,[13] noting that LCL had adduced no evidence to challenge such evidence.[14]

49.  The Judge then addressed the six matters relied on by LCL in support of its case that Lung Hing’s employees’ compensation insurance policy, if any, did not cover the plaintiff :[15]

“(1) in Mr Chan’s Letter, [Mr Chan] stated that there was not any employees’ compensation insurance in relation to the renovation matter on 20 June 2006;

(2) in the unsigned copy of Form 2 provided by the Labour Department to LCL (on 12 May 2010), there was no mention of any employees’ compensation insurance;

(3) [LCL’s] enquiries with L&P, the Liquidators, Lung Hing’s shareholders and former directors did not produce information on any employees’ compensation insurance taken out by Lung Hing;

(4) [L&P] did not act for Lung Hing upon instructions of Lung Hing’s insurer [in the EC Action];

(5) [The Board’s] enquiries with the HKFI also did not produce information on any employees’ compensation insurance taken out by Lung Hing; and

(6) Lung Hing was in the business of transportation and the employees’ compensation insurance taken out by Lung Hing (if any) would not cover the plaintiff.”

50.  For the reasons that he gave, he found LCL’s reliance on each of those matters unsound.[16]  He then said :

“89. I am satisfied that the evidence adduced before me has proved on balance of probabilities that Lung Hing had taken out employees’ compensation insurance for its employees. As the plaintiff was an employee of Lung Hing at the material times, the plaintiff would have been covered by Lung Hing’s employees’ compensation insurance unless prove to the contrary.

90.     I find that [LCL] has failed to prove on balance of probabilities that the employees’ compensation insurance taken out by Lung Hing did not cover the plaintiff.”

C2.    Issue 2

51.  On Issue 2, the Judge summarized the plaintiff’s case against LCL :

“93. In a nutshell, the plaintiff claimed that [LCL] was negligence in failing to ascertain the insurance status of Lung Hing and to identify Lung Hing’s insurer to enable the plaintiff to recover compensation payment awarded to him from Lung Hing’s insurer or to comply with the ECAO to obtain payment from the Fund.”

52.  The Judge described the plaintiff’s complaint as :[17]

“LCL should have taken out application for specific discovery against Lung Hing in the EC Action or application under section 44A of the ECO to compel Lung Hing to disclose its employees’ compensation insurance policy.”

53.  After stating the legal principles governing professional negligence of solicitors derived from Foshan Hua Da Industrial Co v Johnson, Stokes & Master (a firm),[18] which are well-settled,[19] the Judge stated the relevant issue :[20]

“There was no dispute that [LCL] had not taken out any application for specific discovery against Lung Hing in the EC Action or application under section 44A of the ECO. The issue is whether a reasonably competent experienced solicitor would take out the aforesaid applications in the circumstances of this case. If so, whether it was professional negligence or errors of judgment in not taking out these applications.”

54.  LCL’s arguments as to why it did not take out those applications, as summarized by the Judge, were :[21]

“(1) [LCL] took the view that there was no employees’ compensation insurance covering the plaintiff;

(2) the employees’ compensation insurance policy, if exist, was not a document relating to the matters in issue in the EC Action; and

(3) section 44A of the ECO applied only to an employer but at the material times Lung Hing denied it was the plaintiff’s employer.”

55.  As rightly observed by the Judge, LCL’s liability of negligence turned almost entirely on how Ms Hui conducted the EC Action.[22]  In the course of her evidence, Ms Hui remained adamant that it was not necessary to take out the discovery applications because she believed that Lung Hing’s employee’s compensation insurance policy did not exist.  The Judge rejected Ms Hui’s belief as a valid reason for not taking out the discovery applications :

“100. [Ms Hui] was the handling solicitor of the EC Action and the PI Proceedings for the plaintiff in [LCL] until end of October 2010 when she was about to leave [LCL]’s employment.  She said that she had 9-10 years experience in handling employees’ compensation and personal injuries claims when she acted for the plaintiff in the EC Action.

101. Both Lau and Lung Hing disputed that they were the plaintiff’s employer.  [Ms Hui] stated in her witness statement dated 12 November 2012 that when she commenced the EC Action for the plaintiff, it was unclear to her which party was the plaintiff’s employer.  [Ms Hui] had on 3 April 2007 made an initial enquiry to the Labour Department for the Form 2 which should have contained information of the plaintiff’s employer and the employer’s insurer.  No Form 2 was provided by the Labour Department when it replied to [LCL]’s inquiry on 17 April 2007.  Yet Hui took no action to follow-up with the Labour Department on the missing Form 2 until May 2010 ie more than one year after judgment of the EC Action.

102. [Ms Hui] was an experienced solicitor in this area of law.  She should be familiar with the provisions of the ECO and the ECAO being the two main pieces of legislation concerning employees’ compensation claims.  Hui confirmed in her evidence that she was aware of her obligations under the ECAO.

…

104. [Ms Hui] confirmed in cross-examination that she knew that an employer was statutory[23] obliged to take out employees’ compensation insurance for its employees.  The case ran by [LCL] for the plaintiff in the EC Action was that the plaintiff was the employee of either Lung Hing or Lau.  [Ms Hui] should have expected that the plaintiff’s employer had taken out employees’ compensation insurance covering the plaintiff as required by s40(1) of the ECO.

105. [Ms Hui] had on 18 September 2008 written to solicitors acting for Lau and Lung Hing to enquire on the insurance status of Lau and Lung Hing.  Answer from Lau’s solicitors was a straight negative.  However, answer from L&P was in the positive when L&P stated in its letter dated 8 October 2008 that: ‘our client [Lung Hing] has all along taken out insurance policy to cover its liability under Employees’ Compensation Ordinance and its common law liability for its employees’.

106. In the EC Action, the plaintiff claimed to be an employee of Lung Hing.  In such case, [Ms Hui] should have expected that the plaintiff’s claims would be covered by Lung Hing’s employees’ compensation insurance if the plaintiff successfully established in the EC Action that he was an employee of Lung Hing.

107. Knowing that an employer was obliged to take out employees’ compensation insurance for all his employees, a competent and reasonably experienced solicitor would not in the circumstances of this case as set out above hold the view (if [Ms Hui] did so hold such view) that there was no employees’ compensation insurance covering the plaintiff.  I am of the view that a reasonably competent solicitor would in the circumstances of this case seek discovery of the employees’ compensation insurance referred to in the witness statement of Chan to verify whether it would have covered the plaintiff in the event that the plaintiff succeeded in establishing that he was employed by Lung Hing.

108. [Ms Hui] agreed in cross-examination that she knew the risk of the employer of the plaintiff being found insolvent and the plaintiff might have to claim against the insurer of his employer.  It did not require the extent of [Ms Hui]’s experience for a solicitor to realize that to protect the interest of the plaintiff, it was necessary to obtain particulars of Lung Hing’s employees’ compensation insurance before the trial of the EC Action.

…

110. In order to enable the plaintiff to obtain the benefits conferred by the ECO to claim against the insurer of the plaintiff (be it Lau or Lung Hing), the plaintiff had to give sufficient notice to the insurer concerned to enable that insurer to make application to the court to be joined as a party.[24]  In other words, notice of the EC Action should be given to the plaintiff’s employer’s insurer latest before judgment of the EC Action was handed down on 19 December 2008.  In fact such notice should have been given well before the commencement of the trial on 16 December 2008 to enable the insurer to apply to be joined as a party to the EC Action.  A reasonably competent experienced solicitor will know that failure to give notice of proceedings to the insurer will seriously prejudice his client’s interest and render his client losing the right to recover from the insurer.

111. To enable the plaintiff to give notice of proceedings of the EC Action to his employer’s insurer, [LCL], being solicitors acting for the plaintiff in the EC Action, had to ascertain the particulars of such insurer.

112. [Ms Hui] was negligent in holding the belief that there was no employees’ compensation insurance covering the plaintiff.  She was further negligent in not taking discovery application to verify her aforesaid belief when she should know the seriousness of the consequence of failure to give notice of proceedings to the employer’s insurer.

113. In the EC Action, [LCL] acting for the plaintiff claimed against Lung Hing as the plaintiff’s employer.  Lung Hing denied that it was the plaintiff’s employer.  Of course [LCL] did not accept the stance of Lung Hing.  Otherwise, [LCL] would not have advised the plaintiff to pursue his claim against Lung Hing to trial.  As [LCL] did not accept that the plaintiff was not Lung Hing’s employee, [Ms Hui] should have handled the EC Action for the plaintiff on the basis that the plaintiff was Lung Hing’s employee. 

114. I agree with Mr Sakhrani, counsel for the plaintiff, that it should have been clear to any competent solicitor professing to be experienced in employees’ compensation and personal injury litigation that a trial would be required to establish who was the plaintiff’s employer and that in the meantime the necessary enquiries should be made to ascertain and verify the insurance status of Lung Hing and whether its policy covered the plaintiff.  This was also necessary to satisfy the provisions of s16(3) of the ECAO in the event that the plaintiff had to apply to D2 for payment from the Fund.  The fact that Lung Hing had disputed that it was the plaintiff’s employer was no reason for not compelling Lung Hing to disclose particulars of its employees’ compensation insurance.

115. [Ms Hui] relied heavily on [Mr Chan’s Letter] to justify not making application to compel Lung Hing to disclose its employees’ compensation insurance.  In para 28 of her witness statement, [Ms Hui] stated that:-

‘ I also respectfully point out that the most direct and, in my view at the time (and now) most compelling evidence concerning the existence or non-existence of the Policy, was Chan’s unequivocal statement in a letter dated 31 October 2007 to the Labour Department [Mr Chan’s Letter] that: “There was no employees’ compensation insurance policies in relation to the renovation on 20 June 2006”; that is, according to Chan, the owner of Lung Hing, Lung Hing held no Policy in relation to the Plaintiff and the Accident.’

116. [Mr Chan’s Letter] was exhibited to [Mr Chan’s Witness Statement] which clearly stated that Lung Hing had taken out employees’ compensation insurance for its employees.  This had not escaped the attention of [Ms Hui].  In para 12(viii) of her own witness statement [Ms Hui] pointed out that Chan said in his witness statement that ‘Lung Hing had taken out employees’ compensation insurance for Lung Hing’s employees, although significantly, Chan did not give any details of the policy or the insurer in his statement.’  Noting that significant information being left out, [Ms Hui] still said in cross-examination that she concluded from [Mr Chan’s Letter] that it was not necessary to ask for the policy for the employees’ compensation insurance referred to in [Mr Chan’s Witness Statement] as she believed that there was no insurance covering the plaintiff.  Such belief was inconsistent with the case pleaded by [LCL] for the plaintiff in the EC Action.

117. As discussed above, [Mr Chan’s Letter] only stated that Lung Hing had not specifically taken out employees’ compensation insurance in respect of the renovation works.  This was not evidence to say that Lung Hing did not have general employees’ compensation insurance.  [Ms Hui]’s evidence at the trial was also that she did not consider [Mr Chan’s Letter] was in contradiction with [Mr Chan’s Witness Statement].  Accordingly, [Ms Hui]’s view was that Lung Hing had not taken out employees’ compensation insurance for the renovation works was not inconsistent with Lung Hing had taken out employees’ compensation insurance for its employees.  Mr Lim had submitted in para 21 of his opening submissions that:

‘ There is nothing inconsistent between the statement that Lung Hing had all along taken out insurance to cover its liability under the ECO and at common law for its own employees but not for the Plaintiff in DCEC 30 of 2008 [the EC Action] as the Plaintiff had never been Lung Hing’s employee and the statement that Lung Hing did not have employees’ compensation insurance in relation to the renovation on 20 June 2006.’

118. In such case, the statement in [Mr Chan’s Letter] would not have led [Ms Hui] to conclude that Lung Hing had no employees’ compensation insurance.

119. If Lung Hing had taken out employees’ compensation insurance, the scope and ambit of such insurance was to be determined objectively and not by Chan’s subjective thought.  [LCL] was duty bound to verify Chan’s claims about the policy coverage by compelling Lung Hing to disclose the policy.  Failing to do that was not merely an error of judgment but amounted to professional negligence in the circumstances of this case.  Taking Chan’s statement in [Mr Chan’s Letter] at its face value not only demonstrated a naïve and fundamental lack of understanding of the nature of adversarial litigation as suggested by Mr Sakhrani but also amounted to failure of duty owed to the client.”

56.  The Judge then discussed the question whether LCL should have taken out a specific discovery application in the EC Action.[25]  For the reasons that he gave, he concluded that LCL was not negligent in not taking out that application.[26]

57.  Turning to section 44A of the ECO, the Judge said :

“127. The plaintiff said that [LCL] should have pursuant to s44A of the ECO requested Lung Hing to produce for inspection Lung Hing’s employees’ compensation insurance policy to ascertain the particulars of the insurer concerned so as to give notice of proceedings of the EC Action to the insurer.  No such request or application was made.  [Ms Hui’s] explanation was that Lung Hing had denied that it was the plaintiff’s employer and that Lung Hing’s employees’ compensation insurance did not cover the plaintiff.

…

130. Mr Sakhrani submitted that any suggestion that application under s44A of the ECO was not made because both Lau and Lung Hing denied being the plaintiff’s employer in the EC Action represented a total misunderstanding of the professional duty of a solicitor to protect its client’s interests in the event that its client’s case was correct. …

131. Bearing in mind that the plaintiff was required by s43(2)(b) of the ECO to give sufficient notice to his employer’s insurer of the institution of the EC Action to enable such insurer to be added as a party to the EC Action, it could not be right to hold that if Lung Hing disputed that it was the plaintiff’s employer, no s44A request should be made until after determination of Lung Hing’s liability as employer as it would be too late by then for the plaintiff to give the aforesaid notice to Lung Hing’s insurer.  Accordingly, the fact that Lung Hing denied that it was the plaintiff’s employer was no explanation for not serving request under s44A of the ECO and applying to the court for an order to compel compliance of such request.

132. [Ms Hui] stated in para 23 of her witness statement that:-

‘ From the time I commenced acting for the Plaintiff, I was aware of his potential right to apply for relief payments under section 16 of the Employees Compensation Assistance Ordinance (Cap 365) (“ECAO”). I realised that at the end of the day there was always the chance that the employer (who was to be determined by the Court) would not be able to pay compensation or damages awarded to the Plaintiff. I advised the Plaintiff on material aspects of the ECAO. Notice was duly given to the Employees Compensation Assistance Board (“Board”) [D2] of both DCEC 30/2008 [the EC Action] and DCPI 1310/2009 [the PI Proceedings].’

133. If the plaintiff had to apply for payment under the ECAO, particulars of Lung Hing’s insurance would also be required.  As there was always the chance that the plaintiff’s employer would not be able to pay the compensation awarded to the plaintiff, it was incumbent on [LCL], as the plaintiff’s legal representative to identify if the plaintiff’s employer (as claimed by the plaintiff) was insured and to ascertain the identity of the insurer as well as the coverage of the policy to ensure that the plaintiff could exercise his right against the employer’s insurer under the ECO and fully comply with the provisions of the ECAO.

134. [Ms Hui] explained in her witness statement for not making application under s44A of the ECO as follows:-

‘ 25. At no point in the correspondence between the 1^st Defendant and the Board [D2] and GYTH [D2’s solicitors] did the Board or GYTH provide information indentifying the Policy [defined in Ms Hui’s witness statement as “employer’s liability insurance policy re the Accident”], nor did they urge an application under section 44A of the Employees’ Compensation Ordinance (Cap 282) for production of the Policy. In the course of DCEC 30/2008 [the EC Action] I did not apply for orders against Mr Lau or Lung Hing for production of the Policy (if it existed) as that application may be made only against an employer and both Mr Lau and Lung Hing denied that they were the employer of the Plaintiff, which would have been their answer to an application. More to the point, from all the evidence I had (and I refer to further below) there probably never was a Policy, so a section 44A application would have been pointless and is now a purely academic issue.’

135. [Ms Hui] then referred to the Form 2 subsequently obtained from the Labour Department, Chan’s Letter and her subsequent inquiries made to various parties including the Labour Department, Chan, Lung Hing’s secretary, L&P and the Liquidators to support her belief of non-existence of an employees’ compensation insurance policy covering the plaintiff.

136. [Ms Hui’s] understanding of circumstances under which application under s44A of ECO could be taken out was not supported by the Chung Yuen Yee case.[27]  Section 44A of the ECO is a powerful statutory weapon provided to the employee to ensure that the employee will be able to comply with the requirements of s43 of the ECO to obtain the benefits conferred by s44.  Although a solicitor is not expected or bound to know all the law and he is not to be judged according to the standard which might be demonstrated by a particular meticulous and conscientious practitioner, a solicitor practising in the areas of personal injuries and employees’ compensation claims should know the current law governing the applicability of s44A of the ECO.  The decision of the Court of Appeal in the Chung Yuen Yee case was handed down on 3 August 2006 ie just over a year before [LCL] commenced the EC Action for the plaintiff.  It should still be fresh in the mind of the practitioners practising this area of law and yet Hui admitted in cross-examination that she had not heard of the Chung Yuen Yee case.

137. [Ms Hui] tried to blame D2 and D2’s solicitors for not identifying to [LCL] the insurance policy covering the plaintiff and not urging her to make application under s44A of the ECO.  It seems that Hui had forgotten that she was the solicitor acting for the plaintiff.  It was her duty as solicitor for the plaintiff to identify the insurance policy taken out by the plaintiff’s employer.  It was also her duty as solicitor for the plaintiff to take out appropriate applications to protect the interest of her client.  The issue of insurance status of the plaintiff’s employer had been raised by D2 in the letter dated 23 January 2008 from D2 to [LCL].  I fail to see how Hui might blame D2 for not telling her how to discharge her duties towards her client.

138.    [Ms Hui] said in cross-examination that the Form 2 was one of the reasons for her to think that Lung Hing did not have insurance covering the plaintiff.  The Form 2 was received by [LCL] in May 2010 after Lung Hing had been held in the EC Action as the plaintiff’s employer.  As discussed above, the Form 2 in this case was of little, if not nil, assistance in determining the identity of the plaintiff’s employer or whether the plaintiff’s employer had taken out employees’ compensation insurance.  The fact that the Form 2 was not received until May 2010 (ie more than one year after the judgment in the EC Action had been handed down) simply did not assist [Ms Hui] in explaining why she made no application for production for Lung Hing’s employees’ compensation insurance policy under s44A of the ECO prior to conclusion of the EC Action.

139.     [Ms Hui] also relied on the nature of business of Lung Hing to support her belief that Lung Hing did not have employees’ compensation insurance covering the plaintiff.  According to the business registration of Lung Hing, Lung Hing was engaged in transportation business.  As discussed above, the fact that Lung Hing was in the trade of transportation did not mean that Lung Hing’s employees’ compensation insurance only covered named employees or named categories of employees.  Without sight of Lung Hing’s employees’ compensation insurance policy, it was only mere speculation to say that such policy did not cover the plaintiff.  [Ms Hui] and Lam admitted in cross-examination that they could not have known of any limitation or exemption contained in Lung Hing’s employees’ compensation insurance without sight of the policy.  Mr Sakhrani had rightly pointed out that in L&P’s letter dated 8 October 2008, Lung Hing’s solicitors only cited the assertion that the plaintiff was not an employee of Lung Hing to deny the plaintiff being covered by Lung Hing’s employees’ compensation insurance, making no mention of any limitation of coverage of the policy.

140.     I am of the view that relying on speculation in handling a client’s case fell far short of the standard required from a reasonably competent solicitor of nine to ten years experience.

141.     [Ms Hui] as an experienced solicitor in handling employees’ compensation claims should know that if the plaintiff was unable to recover employees’ compensation from his employer, the plaintiff would have to apply to D2 for payment of the amount of compensation awarded to him.  This was confirmed in para 23 of [Ms Hui] witness statement set out above.  [Ms Hui] should also be familiar with the provisions of the ECAO.

142.     Section 16(3) of the ECAO casted a burden on the plaintiff to demonstrate that he had taken such proceedings to recover payment of compensation as were reasonable in the circumstances.  [LCL] as the plaintiff’s legal representative in the EC Action owed a duty to the plaintiff to ensure that he had discharged such burden to get the protection offered by the ECAO.  Accordingly, [Ms Hui] should know that in order to get payment from D2, the plaintiff had to take proceedings not only against the plaintiff’s employer but also against the employer’s insurer.  [LCL] held the view that the plaintiff was one of Lung Hing’s employees.  When [Ms Hui] learned that Lung Hing had taken out employees’ compensation insurance for its employees, [Ms Hui] should know that the plaintiff was required by the ECAO to pursue against Lung Hing’s insurer before the plaintiff might apply to D2 for payment.  This was confirmed in the letter dated 23 January 2008 from D2 to [LCL] when D2 asked [LCL] to advise D2 whether any effort was made in investigating the insurance status.  Of course, before the plaintiff might take proceedings against Lung Hing’s insurer, the plaintiff had to know the particulars of Lung Hing’s employees’ compensation insurance.

143.     Knowing that the plaintiff was required to take proceedings against his employer’s insurer before the plaintiff might apply to D2 for payment, [LCL] failed to take out application under s44A of the ECO to obtain particulars of the insurer underwriting Lung Hing’s employees’ compensation insurance rendering the plaintiff unable to take proceedings against such insurer entitled under the ECO as well as required by the ECAO.”

58.  The Judge then concluded :

“144. [LCL] only started on about 13 March 2010 to make earnest enquiries about the existence of Lung Hing’s employees’ compensation insurance policy when Lung Hing had already been wound up and Chan was not to be found.  The belated actions could not retrospectively cure the earlier failures of [LCL] in taking timely actions to protect the plaintiff’s interests under the ECO and the ECAO.  When Lam, the partner of [LCL] who took over the plaintiff’s cases after [Ms Hui] left [LCL], was cross-examined at the trial, he conceded that if enquiries had been made earlier, there would have been a better chance to locate Lung Hing’s employees’ compensation insurance policy.  The inaction of [Ms Hui] had reduced the chance of the insurance policy being made available to the plaintiff and reduced the chance of the plaintiff to recover compensation payment from Lung Hing’s insurer and to satisfy D2 that all reasonable proceedings had been taken.

145. To consider whether the way [Ms Hui] conducted the EC Action for the plaintiff fell below the standard reasonably required from a solicitor of her experience, the following matters were relevant:-

(1)  [Ms Hui] knew that the plaintiff’s employer was required by the ECO to take out employees’ compensation insurance covering the plaintiff;

(2)  [Ms Hui] knew that despite Lung Hing’s denial, there was a possibility that the court would hold Lung Hing to be the plaintiff’s employer;

(3)  [Ms Hui] acknowledged that the party eventually found to be the plaintiff’s employer (be it Lau or Lung Hing) might turn out to be insolvent and therefore it was important to find out whether Lau and Lung Hing had employees’ compensation insurance cover;

(4)  [Ms Hui] knew that under the ECO in order to claim against the plaintiff’s employer’s insurer, the plaintiff had to give notice of proceedings of the EC Action to the insurer before judgment of the EC Action;

(5)  [Ms Hui] knew that the plaintiff might have to apply to D2 for payment from the Fund if he could not recover from the plaintiff’s employer or its insurer;

(6)  [Ms Hui] knew that for the plaintiff to be entitled to payment from the Fund under the ECAO, the plaintiff had to give notice of proceedings of the EC Action to the plaintiff’s employer’s insurer and to take reasonable recovery proceedings against the plaintiff’s employer and its insurer; and

(7)  to give notice of proceedings to the plaintiff’s employer’s insurer under the ECO and the ECAO and to take reasonable recovery proceedings against the plaintiff’s employer’s insurer, the plaintiff had to identify such insurer.

146. In the context of the aforesaid matters, I find that it was not an error of judgment but professional negligence for [Ms Hui] not seeking discovery of Lung Hing’s employees’ compensation insurance policy by request or application under s44A of the ECO.  In making such finding, I bear in mind that the burden to prove professional negligence over and above errors of judgment is by no mean a light one.  In the circumstances of this case, I accept that the plaintiff has discharged such heavy burden.  I find that [Ms Hui] was negligence in handling the plaintiff’s claim and [LCL] as employer of [Ms Hui] shall be liable for the negligence of [Ms Hui] and answerable to the plaintiff’s claim herein.

C3. Issue 3

59.  The Judge discussed Issue 3 in some detail.[28]

60.  In gist, the Judge ruled that on a proper construction of section 16 of the ECAO, the burden rested with the plaintiff, as applicant, to satisfy the Board that he was entitled to make the application and that all statutory requirements had been satisfied.[29]  The plaintiff failed to discharge the burden because although it was reasonable to do so, he had (through LCL) failed to compel Lung Hing to disclose copy of its employees’ compensation insurance policy and had thereby failed to take reasonable step to identify Lung Hing’s insurer and to take reasonable proceedings against such insurer to seek recovery.[30]

61.  The Judge further found that it was LCL’s negligence which caused the plaintiff’s inability to satisfy section 25B(1) of the ECAO and the Board was entitled to reject the Section 16 Application on this ground too.

C4. Quantum

62.  The Judge applied the principle derived from Livingstone v Rawyards Coal Co[31] in assessing damages.[32]  He then concluded that LCL is liable to pay to the plaintiff HK$618,663.00, consisting of the sum due under the EC Award (HK$277,143.00), the costs recoverable from Lung Hing in the EC Action (HK$278,183.00), the costs incurred in HCCW 727/2009 (HK$60,436.00) and the plaintiff’s common fund costs in HCCW 277/2009 (HK$2,901.00).[33]

D. DISCUSSION

63.  Before us, LCL launched a wholesale attack against the Judge’s findings on Issue 1 to 3 and his assessment of damages.[34]  The plaintiff and the Board sought to support the Judges’ findings by additional grounds set out in their respective respondent’s notice.  For reasons which will become apparent below, it is not necessary for us to deal with the additional grounds relied on by the plaintiff or the Board in disposing of this appeal.

64.  We now set out our views on Issues 1 to 3 in Parts D1 to D3.  We will then deal with assessment of damages in Part D4.

D1. Our view on Issue 1

65.  Mr Coleman SC, for LCL took essentially three main points in urging us to disturb the Judge’s finding on Issue 1.

66.  Mr Coleman first referred to the two stage process identified by the Judge in determining if Lung Hing had taken out the employees’ compensation insurance covering the plaintiff at the time of the Accident and the different burden of proof that he assigned to the parties.[35] Mr Coleman contended that the Judge was wrong in so doing because, as it was for the plaintiff to establish his claim of professional negligence against LCL, the plaintiff had to prove both the existence and coverage of the employees’ compensation insurance.  Mr Coleman argued that the plaintiff and the Board had failed to discharge the burden of proof.

67.  In our view, it is important to read the Judge’s judgment on Issue 1 as a whole and to properly understand it in its overall context. The Judge was clearly mindful of the critical issue before him, namely, whether at the time of the Accident Lung Hing had taken out an employees’ compensation insurance policy covering its employees.  And the plaintiff’s employees must, by virtue of the unchallenged finding made by District Judge Yung in the EC Action, include the plaintiff.  So when the Judge ruled that the burden was on the plaintiff and the Board to prove that Lung Hing had taken out the employees’ compensation insurance covering its employees, what the Judge must have meant is that they need to prove not just an employees’ compensation insurance policy but the policy which covered the plaintiff at the time of the Accident. When his judgment on Issue 1 is read as a whole, we are clearly of the view that the Judge must have approached the evidence with such a burden in mind. We do not think the Judge had erred on the burden of proof as contended by Mr Coleman.

68.  Mr Coleman next submitted that the Judge’s approach to the issue was fundamentally flawed.  In finding that Lung Hung had taken out the employees’ compensation insurance for its employees, the Judge considered only the plaintiff’s and the Board’s evidence, namely, Mr Chan’s Witness Statement and the letters written by L&P dated 8 October 2008 and 11 August 2011.  He had misconstrued that evidence when he said that what Mr Chan had stated in his Witness Statement was confirmed by L&P’s subsequent letters when such letters could not have independently confirmed that veracity of what Mr Chan had said in his Witness Statement.  More importantly, Mr Coleman argued, there is a wealth of evidence relied on by LCL showing that the employees’ compensation insurance did not exist but such evidence was considered, wrongly, in the context of whether the employees’ compensation insurance covered the plaintiff.

69.  We note that the Judge did say in [51] of the Judgment that he was satisfied on a balance of probabilities that Lung Hing had taken out employees’ compensation insurance for its employees at the material times and then referred to Mr Chan’s Witness Statement and the two letters written by L&P in support.  However, his evaluation of the evidence did not stop there.  When he went on to deal with the various matters relied on by LCL in rejecting its assertion that the insurance did not cover the plaintiff, he also addressed in different paragraphs the question if Lung Hing had taken out the employees’ compensation policy for its employees.  It was only after a careful and detailed evaluation of all the evidence that he came to his finding as he did in [89] and [90] of the Judgment.  Although we think, with respect, the Judge could have written his judgment on Issue 1 in a more structured way, we do not accept that he had wrongly approached the evidence on Issue 1 in the way as contended by Mr Coleman.

70.  Finally, Mr Coleman submitted that the Judge’s evaluation of the matters relied on by LCL is, according to his analysis as detailed in his written submissions, deficient and unsatisfactory.  We have considered all the points taken by senior counsel but do not see the need to dwell on them.  In our view, Mr Coleman has not been able to demonstrate that the Judge was plainly wrong in his evaluation and conclusions on those factual matters.  He has failed to surmount the very high hurdle of persuading this Court to disturb the factual findings made by a trial judge.

71.  In our view, the Judge was entirely correct in finding in favour of the plaintiff and the Board on Issue 1.

D2. Our view on Issue 2

72.  To put our discussion in context, we first outline the respective statutory regime within :

(a) the ECO for employees’ compensation under sections 41 to 44 (“the ECO Regime”); and

(b) the ECAO for section 16 applications (“the ECAO Regime”)

with a view to highlighting the importance of the steps available under section 44A of the ECO to compel the employer to disclose his insurer’s identity for the purposes of the two Regimes.

D2.1  The ECO Regime

73.  Sections 42 to 44 in Part IV of the ECO create a statutory liability on the insurer for the amount of the employer’s liability to pay compensation to an employee in respect of whom there is a policy of insurance issued for the purposes of that Part.  See generally Pang Wai Chung v Tai Ping Insurance Co Ltd.[36]

74.  Section 43(1) imposes on the insurer liability to pay compensation to the employee in these terms :

“Subject to this section, where in relation to an employee there is in force a policy of insurance issued for the purposes of this Part and the employer of the employee becomes liable to pay any sum under this Ordinance or independently of this Ordinance in respect of an injury to the employee arising out of and in the course of his employment, such sum shall forthwith become due and payable by the insurer, including any sum payable in respect of interest and costs, notwithstanding anything to the contrary in the policy of insurance.”

75.  However, under section 43(2) no sum shall be payable by the insurer under section 43 unless, relevantly for present purposes :

“(b) …in the case of compensation or damages determined or adjudged by a court … to be payable to the employee or any other person, the insurer had sufficient notice of the institution in the court … of proceedings for compensation or damages, as the case may be, to enable such insurer to be added as a party to the proceedings;

…”

The requirement under section 43(2)(b), very fairly, puts the insurer on notice of the proceedings before he can be made liable.  Whether or not the insurer, upon notification, wishes to join in the proceedings is of course entirely a matter for him.  But the insurer must be duly notified of the proceedings.

76.  Under section 43(3), the court may order the insurer be joined to the proceedings if sufficient notice of the institution of proceedings for recovery of compensation or damages has been given to the insurer.  Once joined, the insurer can defend the proceedings as if such insurer were the employer.

77.  Further, section 44(1) entitles the employee to sue the insurer in his own name by providing :

“(1) Every policy of insurance issued for the purposes of this Part shall be deemed to provide that any employee or other person having a claim against the person insured in respect of the liability in regard to which such policy was issued shall … be entitled to recover in his own name, as though he were a party to the policy, directly from the insurer any amount which he would have been entitled to recover from the person insured.”

Correspondingly, section 42(1) provides that notwithstanding anything in a policy of insurance issued for the purposes of Part IV, an insurer is liable in a proceeding under section 44 for the amount of the liability of the employer not exceeding the available amount covered by the policy of insurance.

78.  However, as required by section 44(2), the employee shall not commence proceedings directly against the insurer in his own name unless he also commences or has commenced proceedings against the person insured.  The employee may take proceedings against the insurer without taking or have taken proceedings against the person insured if he has reasonable grounds to be satisfied that the person insured cannot be readily located in Hong Kong; the person insured is insolvent or the insurer has disclaimed liability under the policy of insurance : see section 44(3).

79.  The importance of the information about the insurer’s identity is self-evident in the context of the ECO Regime.  First, such information enables the employee to give the requisite notice to the insurer under section 43(2)(b), without which the insurer will not be liable for his claims for employees’ compensation.  Second, such information enables the employee to give sufficient notice of the proceedings for the recovery of compensation or damages to the insurer before he can apply to the court to join the insurer in such proceedings under section 43(3), if so advised.  Third, such information enables the employee to sue the insurer directly in his own name under section 44(1).

80.  When the employee does not have the information about the identity of the insurer, section 44A of the ECO comes to his aid :

“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 employee 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.”

Upon the employer’s compliance of the request under section 44A, the employee becomes aware of the identity of the insurer and the particulars of the insurance.  He can then take the matter from there.  If the employer fails to comply with the request, then an application may be made to the court compelling disclosure by the employer.[37]

D2.2  The ECAO Regime

81.  The information about the insurers’ identity is also important to the employee in the context of the ECAO Regime.

82.  Section 16(1) enables a person who is unable to recover from an employer payment of an amount of compensation for which the employer is liable to apply for payment of that amount from the Fund.  There are two essential conditions to be met by an applicant before he can make the application :

(1) the applicant’s employer is liable for an amount of compensation; and

(2) the applicant is unable to recover from that employer that amount of compensation.

83.  As to the first condition, section 16(2) establishes the employer’s liability by reference to the matters specified there. Relevantly for present purposes, subparagraph (a)(i) provides :

“(2) For the purpose of this section an employer is not to be regarded as liable for the payment of an amount of compensation unless –

(a) the amount is payable –

(i) pursuant to a judgment or order of a court or tribunal of competent jurisdiction in Hong Kong;

…”

84.  As to the second condition, section 16(3) relevantly provides :

“(3) For the purpose of this section a person is not to be regarded as being unable to recover from an employer payment of an amount of compensation for which the employer is liable unless the person has taken such proceedings to recover payment of the amount—

(a) from, wherever applicable—

(i) the employer;

…

(iii) an insurer who has issued a policy of insurance—

(A) which is in force in relation to the injured employee at the time of the accident concerned; and

(B) indemnifying the employer, … in respect of such liability; and

(b)    as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the person and the amount likely to be recovered from, wherever applicable, the employer … and the insurer.”

85.  Plainly, the employee needs the information of the insurer’s identity in order to commence the necessary recovery proceedings as required by section 16(3), if it is reasonable in the circumstances to do so, so as to satisfy the second condition.

86.  There is another critically important aspect about the information of the insurer’s identity.  A section 16 application has to be made to the Board pursuant to section 25B, which provides :

“(1) Where, after the commencement[38] of this section, a person commences by writ proceedings in respect of a claim for compensation or damages, the person shall serve on the Board and, where applicable, the insurer concerned a notice of the proceedings—

(a) in writing in a form specified by the Board, signed by the person and accompanied by a copy of the writ;

(b) by registered post; and

(c) subject to subsection (2), not later than 30 days after the date on which the writ is filed with the court.

(2)    The Board may extend the period specified in subsection (1) in the case of a person who satisfies the Board, by notice in writing served on the Board, that there are good reasons why the person cannot, or failed to, comply with subsection (1) within that period.”

Failure to serve the notice of the proceedings on the Board and, where applicable, the insurer, is fatal.  For under section 25B(6) a person who fails to comply with section 25B(1) in respect of a claim mentioned therein shall not be entitled to any payment under the ECAO in respect of that claim, and notwithstanding the other provisions of the ECAO.

87.  Plainly, the employee needs the information about the insurer’s identity in order to comply with the service requirement on the insurer, where applicable, under section 25B(1).  If such information is not readily available or forthcoming from the employer, the only way to get it is to invoke section 44A of the ECO by a request to the employer and if it becomes necessary an application to the court.

D2.3  LCL was negligent

88.  Once the importance of the information about the insurer’s identity for the purposes of both the ECO Regime and the ECAO Regime is fully appreciated, it becomes obvious to any competent and reasonably experienced solicitor practising in the field of employees’ compensation that it is incumbent upon him, when he acts for an employee in his employees’ compensation claims, to take all reasonable steps to obtain such information and when it becomes necessary, to invoke section 44A of the ECO to compel disclosure by the employer unless there are reasonable explanations to justify not doing so.  If without a reasonable explanation, he fails to invoke section 44A to obtain the necessary information about the identity of the employer’s insurer, and as a result of such failure his client, the employee, is unable to recover compensation from the insurer under the ECO Regime or from the Fund under the ECAO Regime, thereby suffering loss and damage, the solicitor is liable for professional negligence.

89.  Here, Ms Hui had 9 to 10 years of experience in handling employees’ compensation and personal injuries claims when she acted for the plaintiff.  As rightly observed by the Judge, she should be familiar with the provisions of the ECO and the ECAO and, we would add, more specifically, the ECO Regime and the ECAO Regime.  She should be fully aware of the importance of getting the information about Lung Hing’s insurer for the purposes of protecting the plaintiff’s interests under the two Regimes.  She should know that she should invoke section 44A of the ECO when such information was not forthcoming from Lung Hing and was not otherwise available.  However, she had failed to do so.  She relied on two principal reasons to justify her conduct.  First, she took the view that there was no employees’ compensation insurance covering the plaintiff.  However, her view turned out to be wrong in light of the Judge’s finding on Issue 1.  Second, she thought that section 44A applied only to an employer but at the material times Lung Hing denied it was the plaintiff’s employer.  However, her view is not supported by authority.  In Chung Yuen Yee,[39] the Court of Appeal held that it was wrong to dismiss an application to the court under section 44A on the ground that the employer denied that it was the employee’s employer.  The same must also apply to a request to the employer under section 44A.  Ms Hui also relied on other matters to justify her inaction.  For the reasons he gave, the Judge rightly rejected them all.[40]  In short, Ms Hui’s mistaken views on all the matters that she relied on did not exonerate her from her failure to invoke section 44A.

90.  In our view, what Ms Hui had committed was not an error of judgment.  It was clearly professional negligence.  Because of her negligence, the plaintiff had been unable to take recovery proceedings against the insurer under section 43 and/or section 44 within the ECO Regime and, as will be seen shortly, to successfully make the Section 16 Application to the Board within the ECAO Regime.  The Judge was entirely correct in his conclusion on Issue 2.

91.  We now turn to explain why in our view Mr Coleman’s submissions failed.

D2.4  Mr Coleman’s submissions

92.  Mr Coleman submitted that the Judge had erred in his understanding of the law in several aspects.

93.  Mr Coleman first submitted that it was wrong for the Judge to find that there had to be an application under section 44A of the ECO to the court before it could be enforced.  Section 44A merely stipulates an obligation on the employer to produce the policy and related documents within 10 days upon request by an employee.  The burden is on the employer to produce the policy and not on the employee to make an application to the court.

94.  We agree that an employer is under a duty to comply with the request made under section 44A.  But the matter does not stop there. When he refuses to comply with the request, there is a way open to the employee to compel disclosure, namely, by applying to the court.  In considering if a solicitor acting for the employee is professionally negligent when it is alleged that he has failed to make a request or take out an application under section 44A, the court needs to examine if the solicitor had, as a matter of fact, failed to make the step in question to compel disclosure under section 44A, and if so, why.  The Judge has correctly approached the question of LCL’s negligence as he did.

95.  Mr Coleman next submitted that the Judge was wrong to assume that section 43 has to be satisfied before resorting to section 44 to enforce against an insurer.  Section 44 is a stand-alone right which enables an employee to claim directly from an insurer.  Thus, section 43 is not the only statutory provision to which an employee may resort to claim against his employer’s insurer, so that there is no general requirement that an insurer necessarily had to be notified or joined as a party to the employees’ compensations action before an employee may ever claim against the insurer.

96.  The Judge said :[41]

“Section 44A of the ECO is a powerful statutory weapon provided to the employee to ensure that that employee will be able to comply with the requirements of s43 of the ECO to obtain the benefits conferred by s44.”

With respect, it is not entirely clear to us what the Judge meant when he said that “the employee will be able to comply with the requirements of section 43 to obtain the benefits conferred by section 44”.  If he is suggesting that an employee must first serve a notice of the proceedings for compensation or damages under section 43(2)(b) before he can commence proceedings against the insurer directly in his own name under section 44, then he is wrong.  But that ambiguity or even error (assuming that to be the case) in his judgment does not take the LCL case anywhere.  What is important is that the employee needs the information of the employer’s insurer before he can serve the notice of proceedings under section 43(2)(b) and if so advised, to commence proceedings against the insurer in his own name under section 44.

97.  Mr Coleman then submitted that the Judge had misunderstood the employee’s obligations in relation of section 16 of the ECAO and section 43 of the ECO.  He argued that section 16 of the ECAO does not require an employee to prove to the satisfaction of the Board that there was no employees’ compensation insurance policy, and the proviso in section 16(3) only applies “where applicable”, and its applicability therefore depends on whether or not there was an employees’ compensation insurance policy.  Section 43 of the ECO, Mr Coleman reasoned, is only applicable where “there is in force a policy of insurance issued for the purposes of this Part”, that is, an employees’ compensation insurance policy.  Therefore the applicability of the proviso in section 43(2)(b) similarly also depends on whether or not there was an employees’ compensation insurance policy.  Mr Coleman went on to submit that similarly, the requirement in section 25B of the ECAO about service of notice to an insurer of proceedings only applies “where applicable”.  Where there is no employees’ compensation insurance policy, there is no need to serve notice.  In conclusion, Mr Coleman contended that it was wrong for the Judge to construe the above sections as imposing an obligation on LCL first to satisfy the Board that there was no employees’ compensation insurance policy.  This is so especially in light of the Board’s own duty to carry out enquiries and investigation upon receipt of a Section 16 Application and notification of employees’ compensation proceedings.  In this regard, counsel prayed in aid sections 21(2), 25 and 25B(7) of the ECAO.

98.  Mr Coleman’s submissions ignore the Judge’s finding on Issue 1, which we uphold, that Lung Hing did have an employees’ compensation insurance policy covering its employees including the plaintiff at the time of the Accident.  That being the case, it would have been reasonable in the circumstances for the plaintiff (through LCL) to commence proceedings against Lung Hing’s insurer.  Section 16(3) of the ECAO applied with full force.  Likewise, a notice of the EC Action could have been served on Lung Hing’s insurer as required by section 43(2)(b).  Such steps were not taken because of LCL’s negligence.

99.  Further, as we will demonstrate when we come to Issue 3,[42] Mr Coleman’s submission on the Board’s duty to investigate is, with respect, not correct.  The fact that the Board has its own duty to investigate upon receiving the Section 16 Application does not alleviate LCL from its duty as the plaintiff’s solicitors to make a request to Lung Hing or an application to the court under section 44A of the ECO to compel disclosure of the particulars of the employees’ compensation insurance and all related documents.

100.  On facts, Mr Coleman submitted that an employee would have sufficiently discharged his obligation by seeking the employees’ compensation insurance policy by written request.  He argued that the Judge was incorrect in finding that LCL had failed to take reasonable steps to identify the employees’ compensation insurance policy.  He neglected the effect of LCL’s efforts in seeking details and information concerning the insurance policy in letters dated 19 January, 6 March and 18 September 2008 before the EC Action, which letters were not mentioned in the Judgment.  With respect, Mr Coleman’s submissions missed the most crucial point, namely, despite all those letters and efforts, LCL had singularly failed to make a request to Lung Hing under section 44A of the ECO.

101.  Mr Coleman then submitted that the Judge failed to consider whether any of the letters sent by LCL amounted to a request under section 44A.  In particular, in the letters of 13 and 15 March 2010, LCL specifically requested production of a copy of the employees’ compensation insurance policy.  However, it was neither LCL’s pleaded case nor Ms Hui’s evidence that the letters sent by LCL to Lung Hing, or any of them, amounted to a request made under section 44A.  All along, the trial proceeded on the basis that no request under section 44A had ever been made by LCL.  In such circumstances, Mr Coleman cannot take this point now on appeal.

102.  Finally, Mr Coleman submitted that the Judge failed to bear in mind the heavy burden that the plaintiff had to discharge in order to find LCL guilty of professional negligence; that is conduct beyond a mere error of judgment.  He argued that on the facts the overwhelming conclusion to be drawn ought to have been a finding of no professional negligence.  For the reasons which we gave above, we respectfully disagree.

D3. Our view on Issue 3

103.  To recap, the Judge found that, on a proper construction of section 16 of the ECAO, the burden rested with the plaintiff to satisfy the Board that he was entitled to make the Section 16 Application and that all statutory requirements had been satisfied.  However, the plaintiff failed to discharge the burden because although it was reasonable to do so, he had (through LCL) failed to compel Lung Hing to disclose a copy of its employees’ compensation insurance policy and had thereby failed to take reasonable steps to identify Lung Hing’s insurer and to take reasonable proceedings against such insurer to seek recovery.

104.  Mr Coleman’s arguments boiled down to the following main points.

105.  First, he repeated his arguments on the effect of section 16 of the ECAO and section 43(2)(b) of the ECO that he deployed in relation to Issue 2.[43] We have already explained why we rejected them.

106.  Second, he argued that LCL was not negligent for failing to invoke section 44A of the ECO.  This argument must fail in light of our conclusion on Issue 2.

107.  Third, he argued that the Board erred in concluding that Lung Hing had an employees’ compensation insurance policy covering the plaintiff.  That must be wrong in light of the Judges’ finding on Issue 1, which we uphold.

108.  Fourth, he argued that the Board should have allowed the Section 16 Application under section 25(1)(b) because no policy of insurance was known to be in force in relation to the plaintiff.  Again, that must be wrong because of the Judge’s finding on Issue 1.

109.  Finally, Mr Coleman argued that the Board was under a duty to investigate to find out the identity of Lung Hing’s insurer upon receiving the Section 16 Application by virtue of sections 21(2), 21(4), and 25B(7) of the ECAO.  He argued that the Board had an obligation to investigate the existence of a employees’ compensation insurance policy under section 21(2) and 25B(7) of the ECAO, properly to discharge its primary function to provide for the protection of the entitlement of employees and others to compensation for employment-related injury.  The Board had a responsibility to use effectively its statutory enquiry powers to ensure it had as much information as reasonably possible effectively and fairly to deal with relief payments applications such as the Section 16 Application.

110.  In [82] to [84] above, we have set out the two conditions in section 16 that need to be satisfied before the Board can, under section 22, accede to an application for payment out of the Fund under section 16.  Since it is the applicant who makes the application, the burden clearly falls on him to satisfy the Board that the two conditions are met in order to make good his application.  Such a construction of section 16(1) is entirely consistent with the legislative intent of the ECAO, namely, the ECAO scheme is the last resort for obtaining payment from the Fund, only after it has been shown that attempts to obtain satisfaction have failed because of the insolvency of the employer or insurer : see Fok Por v Sum Shuk Ching.[44]

111.  More specifically, as required by section 16(3)(a)(iii) and (b), in order to take proceedings reasonable in the circumstances against the insurer, the applicant must first identify who the employer’s insurer is. It follows that the applicant is to take steps to identify the insurer.  It is not for the Board to find out who the insurer is for the applicant.

112.  Mr Coleman’s reliance on the Board’s duty to investigate under sections 21(2), 21(4) and 25B(7) is misplaced.

113.  Section 21(2) and (4) provide :

“(2) Upon receipt of an application under this Part, the Board shall carry out such inquiries as it considers necessary to make a determination under section 22.

…

(4) For the purpose of carrying out inquiries under this section to the Board may—

(a) require the employer (or the employer’s representative or the employee or his member of the family or representative, the employer’s insurer or any other employee of the employer to furnish such information or particulars relating to an application; and (Replaced 16 of 2002 s. 13)

(b) make such inquiries from any other person connected or associated with the application,

as the Board considers necessary.”

Section 25B(7) provides :

“Upon receipt of a notice under this section, the Board shall carry out such inquiries as it considers necessary to facilitate the proper carrying out of the functions of the Board in relation to the claim to which the notice relates.”

114.  The first thing to note is that under the above provisions, the Board is only required to carry out such inquiries as it considers necessary either for determination of the claim (section 21(2)) or to facilitate the proper carrying out of its functions in relation to the claim to which a notice served under section 25B(1) relates (section 25B(7)).  Insofar as section 21(2) is concerned, since the burden rests with the applicant to make good the application and for that purpose to take out reasonable steps to find out who the insurer is, the Board is not under any duty to do so on his behalf.  Insofar as section 25B(7) is concerned, Mr Wong referred to its legislative history and pointed out that it was part of the package introduced by the Employees Compensation Assistance (Amendment) Ordinance 2002. According to its long title, the Amendment Ordinance sought to empower “the Board to take part in legal proceedings in order to protect the Fund”.  The amendments to section 25B was specifically designed to serve this particular objective, which was a legislative response to the request of the court in Lai Chi Pon v Toto Steel & Iron Works Ltd & Others[45] to expose collusion between parties of proceedings to the prejudice of the Fund.[46]  We agree with Mr Wong’s submission that the investigative power conferred by section 25B(7) does not have the effect of somehow converting the Board into an investigating agent for an applicant under section 16 or to relieve him of his own duty to take reasonable steps to identify the insurer and to take reasonable proceedings against the insurer.

115.  We firmly reject Mr Coleman’s arguments on the Board’s duty to investigate under sections 21(2), 21(4) and 25B(7).

116.  In our view, the Board was perfectly entitled to reject the Section 16 Applications.  Their reasoning[47] cannot be flawed.  The Judge was correct in his conclusion on Issue 3.

D4. Assessment of damages

117.  The Judge applied the well-known “but-for” principle in assessing the plaintiff’s loss and damage.  He held that the plaintiff could have recovered his compensation, interest, and costs directly from Lung Hing’s insurer but for LCL’s negligence in not taking steps to compel disclosure under section 44A.

118.  Mr Coleman argued that the Judge must have assumed that even if the employees’ compensation insurance existed the insurer would have been bound and able to pay the sum due to the plaintiff.  Such an assumption was wrong.  He submitted that the Judge should have assessed damages on the basis of the plaintiff’s loss of opportunity to attempt to recover directly from the insurer citing Charlesworth & Percy on Negligence[48] in support.  In so doing, Mr Coleman went on to submit, the Judge was bound to have discounted the full amount of damages on probabilities of the happening of the events that (a) the relevant insurer could be found; (b) the relevant insurer was willing and able to make payment, including being solvent; and (c) in the case where LCL could not otherwise recover from the relevant insurer, the Board would, in exercising its discretion, award the same amount under section 16 of the ECAO.

119.  We note that LCL did not take such an argument on assessment below.  Further, the matters that Mr Coleman referred to are all matter of evidence but no such evidence had ever been adduced before the Judge.  That being the case, we do not think it is open to LCL to assert on appeal that the Judge should have assessed the plaintiff’s loss and damage in the way as Mr Coleman now contended.

120.  In our view, the Judge was correct in his assessment of damages suffered by the plaintiff because of LCL’s professional negligence.

E. DISPOSITIONS

121.  For the above reasons, we dismiss LCL’s appeal.

122.  The parties all agreed that costs should follow the event.  We order LCL to pay the plaintiff and the Board costs of the appeal, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the legal aid regulations.

[1]  Cap 365.

[2]  Which consists of 209 paragraphs in 80 pages.

[3]  Cap 282.

[4]  The unsigned Form 2 was only provided on 12 May 2010 : see [35] below.

[5]  See [25] below.

[6]  On 10 August 2010, the master gave leave to the plaintiff to discontinue against Lau while entering interlocutory judgment on liability against Lung Hing.  The action was then transferred to the High Court as HCPI 5/2011 for assessment of damages. The assessment was unopposed by Lung Hing’s liquidators.  By judgment handed down on 24 May 2013 Master de Souza awarded damages against Lung Hing in the total sum of HK$5,503,210.00 with interest.

[7]  [11] of the Judgment.  Issue (3) also went on to ask “If not, whether [LCL] was liable to indemnify [the Board] or to contribute to [the Board] in respect of the payment to the plaintiff?”  This question does not arise before us.

[8]  [42] of the Judgment.

[9]  [45] of the Judgment.

[10]  [50] of the Judgment.

[11]  [51] of the Judgment.

[12]  See [23] above.

[13]  See [26] and [43] above.

[14]  [55] of the Judgment.

[15]  [56] of the Judgment.

[16]  [57] to [59] on Mr Chan’s Letter; [60] to [62] on the unsigned Form 2; [63] to [68] on LCL’s enquiries; [69] to [71] on L&P not being instructed by insurer; [72] to [74] on the Board’s enquiries with the HKFI; [75] to [76] on Lung Hing’s business; and [77] to [88] on other matters relied on by Mr Patrick Lim of counsel representing LCL.

[17]  [95] of the Judgment.

[18]  [1999] 1 HKLRD 418, at 425A-426F.

[19]  [94] of the Judgment.

[20]  [96] of the Judgment.

[21]  [97] of the Judgment.

[22]  [98] to [99] of the Judgment.

[23]  See Section 40(1) of the ECO.

[24] See section 43(2) of the ECO.

[25]  [120] to [125] of the Judgment.

[26]  [126] of the Judgment.

[27]  Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd and Another, CACV 86/2006, unreported, 3 August 2006.

[28]  [147] to [184] of the Judgment.

[29]  [166] to [167] of the Judgment.

[30]  [158] to [161] and [167] to [169] of the Judgment.

[31]  [1880] 5 App Cas 25, per Lord Blackburn at p 39.

[32]  [201] to [205] of the Judgment.

[33]  [207] of the Judgment.

[34]  Grounds 1 to 3 of the grounds of appeal attack the finding by the Judge on Issue 1.  Ground 4 attacks the Judge’s finding on Issue 2.  Grounds 5 to 7A attack the Judge’s finding on Issue 3.  Ground 8 is not pursued as the question of subrogation ceased to arise.  Ground 9 concerns the Judge’s assessment of damages.

[35]  See [46] and [47] above.

[36]  [1999] 2 HKLRD 354, at pp 361F-362I.

[37]  In Chung Yuen Yee, supra, the plaintiff took out a summons under section 44A of the ECO after the purported employer failed to comply with the request for production of the insurance certificate.  After the lower court dismissed the summons, the plaintiff appealed to the Court of Appeal.  Nowhere in the proceedings throughout had any query been raised if an application to the court could be made under section 44A, although there is no express provision in the ECO enabling such an application to be made.  As we understand the parties’ submissions before us, they readily accepted that an application can be made to the court to compel disclosure under section 44A.

[38]  Commencement date is 1 July 2002.

[39]  Supra, per Rogers VP at [4].

[40]  See [57] and [58] above where the Judge’s judgment is quoted in extenso.

[41]  [136] of the Judgment.

[42]  See [109] - [115] below.

[43]  See [97] above.

[44]  [1992] 1 HKC 581, at pp 586I-587A.

[45]  [1997] 2 HKC 195 at pp 201I-202C.

[46]  See The Legislative Council Brief (Ref: EMB CR/4/3231/77) that introduced the amendments.

[47]  Set out in [41] above.

[48]  13^th Edition (2014), [9-9294] to [9-296].