XIA YUNBIAO v. KONG PO CHOY t/a SUN KONG DECORATION CO.

DCEC 1872/2016

[2018] HKDC 802

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1872 OF 2016

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DECISION

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Introduction

1.  By a summons dated 8 June 2018 (“the summons”), the applicant seeks an order requiring the respondent to do the following within 14 days:-

(1)  disclose and provide a full unedited copy of the insurance policy referred to in his undated witness statement received by the applicant’s solicitors on 4 April 2018 (“R’s witness statement”); and

(2)  make an affirmation/affidavit stating whether the insurance policy is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

2.  The application is made under the Rules of the District Court (“RDC”), Order 24 rule 7 and rule 10.  The applicant also seeks costs of this application, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

3.  The summons is supported by the 2^nd affirmation of Yeung Ping Kuen Ivan (“the supporting affirmation”), solicitor for the applicant.

4.  Having read the evidence on service adduced by the applicant, I am satisfied that both the summons and the supporting affirmation have been duly served on the respondent.

Background

5.  I would first set out the background facts.

6.  On 10 October 2015, the applicant suffered personal injuries while operating a handheld grinder in the course of his employment as a plasterer for the respondent.

7.  The respondent did not file any Form 2 to the Labour Department for the accident as he denied having any employer and employee relationship with the applicant at the material time.

8.  On 15 December 2017, an interlocutory judgment on liability was entered against the respondent.

9.  On 4 April 2018, the applicant’s solicitors received R’s witness statement, in which the respondent said that he did take out“工程保險”(“the insurance policy”) in respect of the works in October 2015.

10.  On 24 May 2018, the applicant’s solicitors wrote to the respondent and requested him to provide a copy of the insurance policy mentioned in R’s witness statement within 14 days.  There has never been any reply from the respondent.

11.  On 8 June 2018, the applicant’s solicitors took out the summons.

The principles

12.  RDC, Order 24 rule 7 is the rule on specific discovery.  The principles concerning specific discovery have been summarized by the Court of Appeal in Paul’s Model Art GmbH & Co KG v UT Ltd [2006] 1 HKC 238 at 247C-G, which are as follows:-

(1)  There is no jurisdiction to make an order for the production of documents unless

(a) there is sufficient evidence showing that the document exists and the other party has not disclosed the document;

(b) the document or documents relate to matters in issue in the action; and

(c) there is sufficient evidence that the document is in the possession, custody or power of the other party.

(2)  When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure.

(3)  The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

13.  Further, in accordance with RDC, Order 24 rule 10, a party is entitled to inspect documents mentioned in the other party’s witness statement(s).

Analysis

14.  The respondent mentions the insurance policy in his own witness statement.  Obviously, there are documents concerning the insurance policy which have not been disclosed by the respondent.

15.  An employer has a mandatory statutory obligation to have an insurance against his liability under the Employees’ Compensation Ordinance (“ECO”).  See ECO s 40. Further, an employer has an obligation to produce the policy of insurance upon the written request made by the employee.  See ECO s 44A.

16.  In my view, the documents concerning the insurance policy are clearly relevant documents in these proceedings.  Those documents would reveal the identity of the insurance company (if the respondent has really purchased the insurance policy), and the employee may then seek to recover the compensation payable under the ECO from the insurance company.

17.  Since the respondent mentions the insurance policy in R’s witness statement, naturally the documents concerning the insurance policy are in his possession, custody or power, or at least have been in his possession, custody or power at some time in the past.

18.  Having read the terms of the summons, I am satisfied that the scope of the discovery has been properly defined in the summons.

19.  I am also satisfied that the applicant is entitled to have the order sought by virtue of RDC, Order 24 rule 10.

20.  In my judgment, it would be fair and necessary to make the order sought by the applicant.

Disposition

21.  For the reasons above, I make an order in terms of the summons.

22.  Lastly, it remains for me to thank the applicant’s solicitors for the assistance provided to this court.