FUNG SOOK HING v. LEUNG TSE WING t/a WING KEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL NO. 10 OF 1989

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BETWEEN

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J U D G M E N T

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Mortiment J.:

1. This is an appeal with leave from an interlocutory order of His Honour Judge Wang made on the 26th October 1988 in an Employees' Compensation action following a fatal accident on the 12th May 1988. The proceedings are brought by the widow for herself and five to alleged dependents. They are contested on liability and quantum.

2. The parties appeared in front of the learned Judge seeking a consent order (inter alia) for a date to be fixed and for the release of a Social Inquiry Report to the parties. The order was made as prayed with the exception that the learned Judge declined to release the Social Inquiry Report. Some correspondence followed but through his clerk the learned Judge confirmed that he had made no order for the release of the report and he declined to review his decision.

3. On the 13th January of this year, the appellant obtained leave from my Lord Hunter J.A. to bring this appeal. As he said in his reasons it was "mainly for the purpose of looking at this whole practice of the use and admissibility of social investigation reports in Employees Compensation cases."

4. The grounds of appeal are simple. They are that the learned Judge failed to give effect to an order sought with the consent of both parties and that he was wrong in principle in refusing to order the release of the report to both parties before the trial.

5. The respondent to this appeal does not appear although it is an appeal which is important to both parties and indeed to all parties in this type of proceedings.

6. Helpfully we have been given information the background and the circumstances in which these reports are obtained by Mr. Kaplan in the course of her submissions and we have looked at an affidavit from Mr. McCormick, Senior Legal Aid Counsel who has much experience before the District Court in this type of case. It is clear from that affidavit that the practice is for the Registrar of the District Court to request (from the Social Welfare Department) such reports - automatically in the cast of fatal accidents and upon application by either party or the court in non-fatal accidents. When received those reports are placed open in the Court file.

7. Mr. McCormick says that in his experience in the last seven years of dealing with a very large number of these cases, the practice as to the use made of the reports varies from Judge to Judge. He says he knows of one case in which a Deputy Judge relied upon the contents of a Social Investigation Report as evidence of fact in trying the issue of quantum between the parties. He goes on to say that some Judges order the release of these Reports only with the consent of both parties, others order their release even if the Applicant objects. Some Judges use the information contained in them to decide issues of quantum, others only for the issue of apportionment of compensation as between dependents.

8. It is clear that there there is no power under any Ordinance or Rules and certainly none at commom law for the Registrar to require the production of such report. It follows that the practice which has been adopted for many years and which originated when these proceedings were much more informal is itself entirely informal. No doubt originally if not born of necessity, it was born of its considerable convenience for in it is both costly in time and money and often difficult to establish dependency or refute dependency is these cases.

9. Further, it is clear that, the contents of such reports often enable defendants to make proper payments into court and enable the parties to reach proper settlements. This is both in the interest of the parties and in the public interest. They resolve what otherwise is an evidential problem.

However, they appear on the Court file and they deal with questions which fall to be decided by the Judge. In the absence of agreement between the parties such documents should not be seen by him as this is the only basis upon which their contents would ever become properly admissible save possibly after a 'hearsay' notice. It follows that there is no proper or legal basis upon which such a report should find its way onto the Court file and so become available for the consideration of the Judge until proper steps for its admission in evidence have been taken.

10. Having regard to the Value of these documents to the parties it is unfortunate perhaps that in the present state of the law and the rules they can normally be introduced into evidence either in whole or in part only by agreement.

11. If the Social Welfare Department is prepared to continue providing these useful reports, for our part, we can see no objection to the Registrar of the District Court continuing to request and to receive them. However, no such report should either be placed on the Court file or be shown to the Judge. The reports can and should be provided to the parties and if any parts are agreed (or other proper steps taken) they can be put before the Judge at the trial, or indeed at call-over if that is the convenient time.

12. Having regard to these matters, we would therefore make the following orders on this appeal:

(1) The report should be removed from the Court file. (It should never have been there in the first place);

(2) It should be released to the parties for their consideration so that they may make such use of it as they may be advised;

(3)    The case should be restored to the list for trial but having regard to the matters which we have set out it should be restored before another Judge.

13. Finally having regard to the value of these reports to the parties we note that there is a working party reviewing the legislation in relation to them This appeal makes the work of that working party more urgent

14. By agreement there will be no order for costs.