Shek Wah Ming v. Fong Kwok Ming

[English Translation – 英譯本]

DCEC 182/2017

[2018] HKDC 960

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 182 OF 2017

________________________

________________________

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

JUDGMENT

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

Application

1.This is an application for Employees’ Compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282, by the applicant against the respondent in respect of an accident which happened on 25 June 2015. The application was filed on 24 January 2017.

2.In the present case, the respondent has neither submitted any answer or witness statement, nor did he appear in any of the hearings before.   Judge Levy made an order on 8 June 2018 for judgment to be entered for the applicant. The respondent was held liable with the amount of compensation to be assessed.     

3.Today’s hearing is on the assessment of the amount of compensation.

4.However, the applicant notified the court for the first time at the beginning of today’s hearing that in fact a bankruptcy order was made against him on 14 March 2017, and he only notified the trustee in bankruptcy about today’s hearing on 2 August 2018.  

5.Hence, I raised the question of whether the applicant can carry on with this application after the bankruptcy order was made against him, or if his cause of action is already transferred to the trustee who as a result has the right to continue with the present application.    

6.In order to make good use of the court time, Ms Lui, counsel for the applicant, urged the court to carry on with the hearing, and then adjourn the case to the afternoon upon the completion of the case of the applicant. This would allow her time to conduct legal research to assist the court. I approved the request. 

7.Therefore, the applicant testified in court, completed his case and the hearing was adjourned to the afternoon.

8.When the hearing resumed in the afternoon, Ms Lui agreed that according to the English Court of Appeal case ofOrd v Upton [2000] Ch 352, even if the applicant’s case is one for personal injuries, if the applicant’s claim is not limited to PSLA, but also includes other economic losses, such as loss of earning capacity and so on, only the trustee in bankruptcy has the right to make this application. 

9.I also note that Ord v Upton [2000] Ch 352 was cited by the Court of Appeal; see Chan Yuk Lun v Tse Yuen Ming Teresa （CACV 229/2014，21/3/2018）[2018] HKCA 182.   

10.In view of the fact that the present case involves other economic losses to the applicant, Ms Lui submits that she needs some time to resolve the issue, including consulting with the trustee and considering making an application for the case to continue.

11.I accept the submission of the applicant and therefore make an order as follows:

(1)   This application be adjourned sine die with liberty to restore;

(2)   Costs of today be reserved.

Ann T Y Lui, instructed by the Director of Legal Aid, for the applicant

The respondent in person and absent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.