Yu Yin Sun v. 李良 and Others

DCEC000926/2002

DCEC926/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 926 OF 2002

Coram: H H Judge Carlson in Chambers

Date of Hearing: 4 December 2003

Date of Ruling: 4 December 2003

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R U L I N G

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1.I have before me a summons requiring the applicant to provide further and better particulars which were first asked for in a letter dated 17 November and then set out more formally in the summons which is dated 29 November. This all relates to the applicant's earnings for the 12 months immediately prior to the date of the accident which was in January 2002.

2.Miss Lam, in opposing the application today, has taken a number of points, some procedural and the others more substantive, as to the merits of the summons itself.

3.Her first point is that under the relevant rule, Rule 18 of the Employees Compensation (Rules of Court) Rules, once an application is made the party to whom the request is directed would have 14 days in which to reply and her point is that the respondents have rather jumped the gun by not waiting for the 14 days to expire. But I think the real answer to this is that although, technically, the summons has been brought a few days too early, the fact of the matter is that the particulars sought by letter were refused, in no uncertain terms, in a letter that was sent by the applicant's solicitors on 17 November.

4.So I think the point really goes on that where the applicants' solicitors had made their position perfectly clear that they were not disposed to provide these particulars. It must then be right that the respondents should be in a position to issue their summons immediately. So I do not, with respect to Miss Lam, think there is anything in that point.

5.I now turn to the substantial points on the merits. What she says is that where section 11 in its various parts provides a self-contained regime for establishing an employee's earnings by reference to the various criteria set out in section 11, there really is no need to make a request of this sort which would require the applicant to go back for a whole year and set out his various employments and the nature of his work and so forth.

6.That is covered by paragraphs 1, 2 and 3 of the summons but I do not think that is right. This is a case where all that is being asked for is for the applicant to give a proper account of himself for the previous 12 months. The real evidence would then emerge and I can see that there is no reason at all why this order should not now go.

7.I think that this would be extremely useful for the court to establish what the situation really was at the time. I do not think it is especially onerous on the applicant. It is only for a year. I do not know how many employments he has had but I would not have thought that that would be terribly difficult.

8.So I am going to order in terms of 1, 2 and 3 as to 4. Miss Lam has very helpfully indicated that the amounts that have gone into his bank account relate to unemployment benefit and then that will be perfectly straightforward. She has already provided Mr Ngai with that information over the telephone. It is a question of writing one or two sentences to confirm all of that.

9.So I am going to make an order in terms for the summons and I think I am going to provide a little more time than 14 days. I am going to say 21 days. I appreciate that the trial is going to be sometime in January but 21 days should be sufficient. So that is the order.

Representation:

Present: Miss T Y Lam, of Or, Ng & Chan, for the Applicant

Mr Tim Ngai, of Munros, for all Respondents