CHAN SZE CHUNG v. 麥健秋 TRADING AS MING WAI CONSTRUCTION MATERIAL TRANSPORT

DCEC 529/2023

[2024] HKDC 1674

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 529 OF 2023

--------------------------

IN THE MATTER OF AN APPLICATION BETWEEN

-------------------------

----------------------

DECISION

----------------------

Background

1.  The claims for employees’ compensation in these proceedings arose from an accident that took place on 15^th March 2021. It is not in dispute that the Applicant was an employee of the Respondent.

2.  It is the Respondent’s case that the Applicant had only worked for him for 4 days before the accident took place. On 17^th August 2023, the Respondent filed a list of earnings of the Applicant. It was stated that the Applicant received daily salary of HK$1,200 on 10^th, 11^th, 12^th and 13^th March 2021.

3.  Pursuant to the order dated 30^th August 2023 made by Deputy District Judge David Chan, the Respondent filed a fresh list of earnings of the Applicant on 5^th October 2023. It was stated that “[t]he Applicant commenced employment with the Respondent on 10^th March 2021 and his earnings at the time of the alleged incident on 15^th March 2021 was HK$1,200.00 per day.”

4.  On 19^th September 2024, the Applicant took out a summons pursuant to sections 11(2) and (8) of the Employees’ Compensation Ordinance (Cap 282) seeking to compel the Respondent to file another list of earnings of the Applicant within 14 days.

5.  In his supporting affirmation, the Applicant contends that the Respondent has failed to comply with the said order made by Deputy District Judge David Chan as well as sections 11(2) and (8) of the Employees’ Compensation Ordinance.

6.  The Applicant’s contention is as follows:-

(1) The Applicant relies on section 11(2), which provides as follows:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

(2) The Applicant then goes on to contend that since the Respondent alleges that his employment only lasted for 4 days before the accident occurred, it would be impracticable to compute his rate of remuneration. Thus, the Respondent should have stated the average monthly income (in the 12 months’ period before the accident occurred) that was earned by his employee(s) of similar earning capacity in the same grade employed at the same work.

7.  The Applicant’s summons filed on 19^th September 2024 is before me at the present hearing.

Deliberation

8.  For the following reasons, I reject the Applicant’s contention. I am of the view that his application is liable to be dismissed.

9.  Section 11(8) of the Employees’ Compensation Ordinance reads as follows:-

“Within 14 days after the date of issue of a written request of the employee or of the Commissioner to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings which have been earned by that employee upon which the amount of the monthly earnings may be calculated for the purpose of this section.” (emphasis added)

“僱員或處長向負有法律責任支付補償的僱主發出書面要求後，該僱主須在該書面要求發出日期後14天內，以書面提供該僱員賺取所得的收入的列表，以用作為施行本條而計算該僱員每月收入額的依據。” (粗體底線後加)

10.  In my view, the meaning of the words in section 11(8) is abundantly clear. The employer is only under an obligation to provide a list in respect of the earnings earned by the employee who makes the written request and who is entitled to bring a claim against the employer pursuant to the provisions of the Employees’ Compensation Ordinance. The phrase “that employee” or “該僱員” clearly refers to the employee who suffers injury in the accident and who has a claim against the employer. I cannot see how it can be said that section 11(8) empowers the court to compel the employer to provide a list of earnings in respect of other employees who are in a similar position as the injured employee. Not an iota of the words in section 11 supports this construction. Despite my invitation under the directions dated 25^th September 2024, the Applicant’s legal representatives have been unable to cite any authority that supports the Applicant’s contention.

11.  I do not lose sight that the courts have reminded practitioners acting for applicants who are employed on a short-term basis that they should be aware of the evidence required under section 11(2): see eg Or Wing Ming v Ho Bing Chi [2008] 2 HKCLRT 20 at para 31 (per Yuen JA). However, this is not a reason to disregard or twist the words in section 11(8) (the meaning of which are, in my view, clear and unequivocal). Whilst it is open to the injured employees or applicants to rely on the data published by the Government, they may also utilize other procedural mechanisms to seek relevant information and/or documents from the employers or respondents.

Order and Disposition

12.  In the premises, I decline to make any order compelling the Respondent to file a list of earnings in respect of the salaries earned by other employee(s) that he employed (if any). I am of the view that I do not have the powers to grant the order sought by the Applicant.

13.  I dismiss the Applicant’s summons filed on 19^th September 2024.

14.  Costs should follow the event. There is no reason why the Respondent is not entitled to costs. Adopting a broad-brush approach, the costs payable by the Applicant to the Respondent is summarily assessed at HK$7,600.

15.  I also order that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.