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

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J U D G M E N T

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Hunter, J.A. :

1. This is an originating motion seeking the grant of leave to appeal from an order of H.H. Judge Wong made on 26th October 1988 whereby he declined to order the release to the parties in Employees' Compensation proceedings of a social investigation report. I am also invited to extend the time for the making of this application; to give directions as to the service of the notice of appeal; and to direct that the proceedings in the court below be stayed pending the hearing of such appeal.

2. The application raises a problem which is novel to me, and in respect of which I can find no adequate guidance either in the Ordinance or in the Rules. The practice seems to be that where a death claim arises under the Ordinance, the Commissioner automatically (or at least in many cases) invites the preparation of a social investigation report. The apparent purposes is this. Under section 6 of the Ordinance the guantum of compensation largely depends upon the nature of the dependency. If one person can be seen to be wholly dependent, than the matter is covered by section 6(1). In this case it would section 6(1)(c). That would arise if, as alleged in the present application, the deceased's mother can be shown upon evidence to have been wholly dependent upon him. The issue there I am told will be whether the old lady was wholly dependent upon him, or whether she was also deriving support from the deceased's other family members, his widow and four children, all of whom were in employment.

3. The second possibility is that it is section 6(4) case, with a number of persons being partially dependent upon the deceased. It is alleged in the application that there were four such persons, the widow, two sons and two daughters. If it is sub-section 4 of case then the court, within the maxima lay down in sub-section 1, can make awards which are based upon actual dependency. The purpose of a social investigation report is I apprehend initially to assist the Commissioner, and later other interested parties, to form a view as to the likely validity of the various potential claims under the Ordinance.

4. What happened here was this. At the call over in the District Court on 26th October, the applicant sought a particular order. The application was made with the consent and support of the respondent. The applicant asked for four things:

(1) The hearing date to be fixed.

(2) The respondent to file within 14 days a list of the deceased's earnings.

(3) Release of the social investigation report to the parties.

(4) Costs in the cause.

What the court did was to make an order :

"By consent order in terms, except for the release of social investigation report."

The order was never drawn up, and Mrs Liang who was there for the respondent, was somewhat confused in her mind as whether this was a temporary refusal or a final refusal. The form of the order is itself not very happy because the consent extended to the four matters not to the three. The order, I suppose, could be made by consent as far as those three matters was concerned, but then the court might expressly have said why it was refusing the release of the social investigation report. When clarification was sought by Mrs Liang by letter on 16th November, she received none until after she had telephoned the court. She was then told that there had been no order made for the release. When Mrs Liang protested at this and invited review, the answer came back that the judge did not propose to review. In those circumstances time passed, and I am asked to extend the time. I am also asked to exercise the particular dispensing power given under O.59 r 14(4) to this court in exceptional circumstances to permit the application to be made to this court. That is not the easiest of exercises, when that sub rule talks about "impossible" or "impracticable".

5. The reality of this case seems to me to be this. Both parties here, the applicant by the form of application made below, and by taking a neutral stance on this application and not appearing today, and the respondent by advancing it, are really seeking to have clarified, what seems to me at the moment to be an extremely doubtful procedure, in relation to these reports in this type of case. These reports have two potential uses, if they have evidential value at all. That is the first problem. There is nothing in rules governing them. There is nothing in the rules making them evidence. From their very nature they are pure heresay in most cases. The author is really doing his or her best, gathering information from various potential claimants to dependency, and putting it all together. He or she is doing an investigation work. Special provision prima facie is needed to deal with the admissibility in evidence of such a report, unless the parties consent. That is the first problem.

6. The first value of the report, is to the parties. It is perfectly true that the applicant has to plead and prove the dependency relied upon, and to that extent call the family member, or members at the hearing. But it may be that if the social inquiry report shows what he wants to prove, and the fact that it comes from that source induces the respondent to admit it, then the evidence to be called at the hearing could be much abbreviated. As far as a respondent is concerned, a report of this nature is of even greater importance. From the nature of these claims the costs of an enquiry agent are quite out of proportion. The report enables a respondent to obtain reliable information as to dependency in order to assess his position on the claim; make sensible offers; and make sensible payments into court. So that as between the parties such a report is a very useful source of information, which may shorten cases and lead to settlement. That is no doubt the reason why they both wanted to see this report.

7. The second potential use in these reports is to assist the court itself. Because once the total amount of the compensation is assessed under section 6, the court has a particular obligation to determine the distribution of that sum amongst the parties. With that matter the respondent is not directly concerned. That brings me back to evidential value. I am told (and it seems to me with respect to Mrs Kaplan highly likely) that courts tend heavily to rely upon social investigation reports in such circumstances. This is not surprising. One the purposes of the report is to give them that assistance. But it does seem to me that that creates problems of admissible evidence, if the report is not disclosed to the parties, and that they have no opportunity of consenting or objecting to the use of that information, or of correcting anything which they assert is wrong in it.

8. I come back to the situation in this case. Both parties want to see the report, and so far it has been denied to them. They want to see it for their own immediate interests in the prosecution of this claim and defence. What use the judge intends to make of it, one does know. But speaking from myself, I have some difficulty in seeing how a report like this can properly be used by him without first being disclosed to the parties.

9. The last problem is that the judge has simply declined the application, and I have no idea what his reasons were for reaching that conclusion.

10. In all these circumstances I think this is a case where it is right to take the exceptional courses I am invited to take; to extend the time; to give direct leave to appeal from the learned judge's refusal on 26th October; to direct that notice of appeal, which will be short can be served upon the applicant, I would say, within the three days (subject to further argument); and that the appeal can be set down within a further very short time thereafter. The trial is at present fixed for 23rd January. With the best will in the world there is no way of meeting that time now. But I hope that the appeal can be dealt with with expedition by this court, mainly for the purpose of looking at this whole practice of the use and admissibility of social investigation reports in Employees' Compensation cases. It necessarily follows that pending the determination of this appeal I should make an order in the terms of paragraph 3 of the Notice of Motion, and that the costs of this application should be costs in the appeal.