Tang Fook Tai v. Yang Fang Lang t/a Sinon Orchids Nursery

DCEC144/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 144 OF 2008

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Coram:    H H Judge Marlene Ng in Chambers (open to the public)

Date of Hearing:    13^th October, 2008

Date of Directions:  13^th October, 2008

Date of Handing Down Reasons for Directions: 17^th October, 2008

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REASONS FOR DIRECTIONS

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I. Background

1. The Applicant claimed that on 6^th March 2006 whilst working in the course of his employment with the Respondent inside the Respondent’s nursery in Yuen Long (ie pushing a cart loaded with potted plant waste), she fell and sustained injury to the right side of her body (“Accident”). On 30^th January 2008, the Applicant commenced the present proceedings against the Respondent to claim for employees’ compensation and to appeal against the assessments in the Certificate of Review of Assessment date 29^th October 2007.

2. The Application referred to 3 addresses for the Respondent, namely (a) 2 local business addresses in Yuen Long and Mongkok respectively (“Yuen Long Address” and “Mongkok Address”, collectively “Hong Kong Addresses”), and (b) a residential address in Taiwan (“Taiwan Address”). In light of the Taiwan Address, the Application was marked not for service out of jurisdiction.

3. Pursuant to rule 17(1) of the Employees’ Compensation (Rules of Court) Rules (“Rules”), the Registrar of the District Court (“Registrar”) attempted to cause a copy of the Application together with a copy of the notice in Form 4 of the Schedule to the Rules (“1^st Form 4”) to be served upon the Respondent at each of the Hong Kong Addresses by registered post on 1^st February 2008. The 1^st Form 4 was to inform the Respondent that he must lodge with the Registrar an Answer within 21 days after service of such form, and that in default of compliance or of his appearing at the hearing of the Application on 7^th March 2008 such order might be made as the court would deem just and expedient.

4. On 4^th February 2008, the Registrar wrote to inform the Applicant’s solicitors that service on the Taiwan Address could not be effected by the Registrar pursuant to rules 13 and 17(1) of the Rules, and urged them to apply to the court for directions as to the manner of service pursuant to rule 14 of the Rules.

5. In due course, the Registrar notified the Applicant’s solicitors that copies of the Application and Form 4 posted to the Hong Kong Addresses were returned marked “已離職及已遷” for the Yuen Long Address and “unclaimed – return to sender” for the Mongkok Address. This meant the Registrar’s attempts to serve the Application on the Respondent locally were unsuccessful.

6. On 13^th February 2008, the Applicant filed an ex-parte application for an order to effect service of process by sending by prepaid registered post to the Respondent’s Taiwan Address or in such manner as the court might direct (“1^st Ex-parte Application”). The Applicant filed his affirmation dated 13^th February 2008 in support (“1^st Affirmation”).

7. By the 1^st Affirmation, the Applicant verified that she worked at the Respondent’s nursery at the Yuen Long Address at the material time. The Respondent, who resided in Taiwan and only came to Hong Kong occasionally or a few times a year, had a retail outlet at the Mongkok Address. The Respondent’s staff managed the day-to-day business operations. The Applicant had not seen the Respondent after the Accident, and did not know the Respondent’s address in Taiwan. But the Respondent’s business registration search records revealed that (a) her residential/business address was the Taiwan Address, and (b) she had ceased business in Hong Kong on 30^th July 2006. The Applicant believed the Respondent still resided in Taiwan, but was unaware of any address of the Respondent other than the Taiwan Address.

8. On 19^th February 2008, by written requisition to the Applicant’s solicitors, I directed inter alia the Applicant to comply with Order 11 of the Rules of the District Court (“RDC”) since the RDC applied mutatis mutandis to employees’ compensation cases. I drew the attention of the Applicant’s solicitors to section 21 of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) and Li Kwok Shing v Law Ka Fu trading as Wing Fai Electrical Engineering CACV212/2002 (unreported, 21/6/03).

9. If Order 11 of the RDC is applicable, the relief sought in the 1^st Ex-parte Application is prima facie inappropriate. Service by prepaid registered post is within the domestic scope of the Rules, and it is necessary to invoke substituted service as well as service abroad under rule 14 of the Rules and Orders 11 and 65 of the RDC for service abroad by post. Normally, it is only after efforts to effect service abroad in the manner prescribed in Order 11 of the RDC have failed that an application is made to the court for substituted service (see Hong Kong Civil Procedure 2008 Vol.1 para.65/4/8 at p.1029).

10. On 28^th February 2008, the Applicant filed another ex-parte application pursuant to Order 11 of the RDC for an order that service of process might be effected on the Respondent at the Taiwan Address in such manner as the court might direct (“2^nd Ex-parte Application”).

11. The Applicant’s affirmation dated 28^th February 2008 was filed in support of the 2^nd Ex-parte Application (“2^nd Affirmation”). By the 2^nd Affirmation, the Applicant verified the Accident arose out of and in the course of her employment with the Respondent, and exhibited a copy of the Form 2 dated 10^th July 2006 submitted to the Labour Department and a copy of the Form 9. The Applicant claimed her solicitors advised she had a good cause of action against the Respondent. The Applicant reiterated the matters in the 1^st Affirmation, and added that she believed the Hong Kong Addresses were no longer the Respondent’s addresses since the Respondent had already ceased business in Hong Kong on 30^th July 2006.

12. On 6^th March 2008, I raised inter alia the following written requisitions with the Applicant’s solicitors :

“……

2.  The Applicant is referred to Rule 17(1) of the [Rules]. How does the Applicant propose to deal with service of the Form 4 in respect of the call-over hearing and/or the time for filing of the Answer by the Respondent?

3.  Rule 17(1) requires that not less than 1 month shall elapse between the date of service of Form 4 on the respondent and the date fixed for hearing of the application. The Applicant should give consideration as to the mode of service required under O11 r5 of RDC and the time expected to be required for such service.

4.  Please revert by affidavit.”

13. On 5^th March 2008, MSIG Insurance (Hong Kong) Ltd (“Insurer”) applied by inter partes summons (“Summons”) for inter alia the following reliefs :

(a)  the Insurer be added as the 2^nd Respondent in the present proceedings;

(b) the Applicant shall not enter judgment against the Respondent without leave of the court and without giving prior notice to the 2^nd Respondent;

(c)  leave to the Insurer to serve subsequent processes on the Respondent out of jurisdiction.

14. The affirmation of the Koon Yin Ting (“Ms Koon”), solicitor for the Insurer, dated 5^th March 2008 was filed in support of the Summons (“Koon’s Affirmation”). The Insurer issued an insurance policy which included coverage for employees’ compensation in favour of the Respondent and was the insurer concerned in respect of the alleged Accident. On 5^th March 2008, the Insurer’s solicitors wrote to the Respondent declining liability under the policy. Ms Koon stated the Insurer had an interest in the outcome of the present proceedings by virtue of Part IV of the Ordinance, and wished to be joined as a party to protect its interest.

15. The Insurer’s solicitors posted copies of the Summons and Koon’s Affirmation to the Hong Kong Addresses by ordinary post and to the Taiwan Address by airmail.

16. At the call-over hearing on 7^th March 2008, I adjourned both the Application and Summons since such processes had not been properly served on the Respondent and the Applicant’s solicitors had yet to respond to my written requisitions of 6^th March 2008. I urged the solicitors for both the Applicant and the Insurer to cooperate on the matter of service of the Application and Summons on the Respondent.

17. On 28^th August 2008, the Applicant’s solicitors sent a letter to the court (with copy to the Insurer’s solicitors) giving the following information (“Letter”) :

(a)  they had made repeated enquiries with law firms in Taichung, Taiwan (ie close to the Taiwan Address) which led nowhere;

(b) they further liaised with a law firm in Taichung and two law firms in Taipei, Taiwan;

(c)  the two law firms in Taipei advised that service of process in Taiwan was regulated by the Code of Civil Procedure which prescribed that service could only be effected by a Taiwanese court pursuant to letters rogatory;

(d) it was the experience of one of the two Taipei law firms that Hong Kong courts would not issue letters rogatory for service of court documents in Taiwan.

18. The Applicant’s solicitors submitted in the Letter that (a) the Rules provided for simplified procedure for service of applications and documents, (b) rule 14 dealt with service out of jurisdiction, and (c) rule 17(1) provided that the Application and the Form 4 notice be served by the Registrar. “If the Court is with us, we will await to further proceed until after the service of Applicant’s Application in Form 4 by the Registry”. The tenor of the Letter anticipated that the Registrar would serve copies of the Application and the Form 4 notice on the Respondent even if the address for service were outside jurisdiction, and the Applicant would not proceed further until the Registrar had done so.

19. On 8^th September 2008, I granted paper directions that the 2^nd Ex-parte Application be adjourned for hearing before me, and such hearing was eventually fixed to be returnable on 13^th October 2008. In the paper directions, I pointed out that it was inappropriate to support the 2^nd Ex-parte Application by letter, and any affidavit in support should be filed three clear days before the hearing. I reminded the Applicant’s solicitors to be in a position to address why there was no reference to any attempt to make enquiries locally, and why the provisions in Order 11 of the RDC would not be applicable even if rule 14 of the Rules were applicable.

20. By the affirmation of Chan Kar Fung Peter (“Mr Chan”), solicitor for the Applicant, dated 6^th October 2008 filed in support of the 2^nd Ex-parte Application (“Chan’s Affirmation”), Mr Chan gave the following information :

(a)  On 7^th March 2008, Chung Hwa Travel Service Hong Kong (“Chung Hwa”) informed Mr Chan it did not handle service of process.

(b) Mr Chan wrote to two law firms in Taichung, one of which responded on 1^st April 2008 stating that personal service was not “a legal way to serve under Taiwanese laws” and service of legal process had to be made through the Taiwanese courts. Such law firm further stated that “[the] request of Taiwanese court’s assistance for service of legal process by foreign court shall be made for foreign court through diplomatic authorities of such foreign country and Taiwan”. On 2^nd July 2008, the Applicant’s solicitors wrote further to such law firm on joint instructions from solicitors for the Insurer, but there was no further reply.

(c)  On 1^st August 2008, solicitors for the Applicant wrote to a law firm in Taichung and two law firms in Taipei.

(d) On 4^th August 2008, one of the two Taipei law firms responded by stating that service of legal process could only be effected by a court in Taiwan, and a Taiwanese court would effect service of legal process for a foreign action based on letters rogatory issued by the foreign court. “In the past, we have served the legal process on respondents in Taiwan for our clients due to the difficulties and time-consuming process encountered by the clients to convince the foreign court concerned to issue the letters rogatory.”

(e)  The Taichung law firm responded on 5^th August 2008 and agreed that request for official judicial assistance on service of process was necessary. Under Taiwanese laws, service should be conducted by its courts, but letters rogatory were required for service of foreign judicial documents. According to such law firm’s past experience, the High Court of Hong Kong would not agree to issue letters rogatory, so it suggested that enquiries be made to see if the High Court of Hong Kong would now be prepared to issue letters rogatory. Such law firm was told by its client that the Hong Kong courts might accept a certificate issued by a notary public confirming delivery of the writ of summons to the defendant in Taiwan, but there was no feedback from such client as to whether such certificate was acceptable to the Hong Kong courts.

(f)   Mr Chan made enquiries with the Registrar of the High Court and was informed by letter dated 28^th August 2008 that “[no] such letters rogatory have been issued before”.

(g)  Further enquiries by the Applicant’s solicitors with Chung Hwa revealed that a Hong Kong court document might be served by the Taiwanese courts to a person in Taiwan through arrangements by the Mainland Affairs Council, and upon successful service the Taiwanese courts would issue a certificate of service. Chinese translation and notarisation of the relevant documents were required. If service were successful, issuance of the certificate would take three weeks. If service were unsuccessful, a second attempt would be made. If service was still unsuccessful, the Taiwanese courts could serve by post or by such other way as it deemed appropriate.

(h)  Mr Chan believed that three months would be an appropriate period for service to be effected on the Respondent at the Taiwanese Address or such other address(es) known to the Applicant thereafter by the mode of service described in (g) above.

II.    Directions

21. At the hearing before me, I granted the following directions in respect of the Application :

(a)  leave to the Applicant to amend the Application by replacing the words “trading as” with the words “formerly trading as” in the description of the Respondent;

(b) the Applicant do file the Amended Application within 7 days from the date hereof;

(c) the call-over hearing of the Amended Application be adjourned to be heard on 7^th March 2009 at 9:30am before the employees’ compensation judge in chambers (open to the public) at Court No.9 of the District Court, Wanchai Law Courts, No.12 Harbour Road, Hong Kong;

(d) the Registry do issue bilingual (English/Chinese) notice of the adjourned call-over hearing (“New Form 4”) to the Respondent;

(e)  the Applicant do within 7 days from the date hereof collect the New Form 4 for service of the same on the Respondent;

(f)   the time for the Respondent to file the Answer be extended to 35 days after service of the Amended Application and the New Form 4;

(g) leave to the Applicant to serve this Order, the Application issued on 30^th January 2008, the Amended Application to be filed as aforesaid and the New Form 4 on the Respondent Yang Fang Lang formerly trading as Sinon Orchids Nursery out of jurisdiction pursuant to Order 11 rule 1 of the RDC at the Taiwan Address or elsewhere in Taiwan accompanied by (i) a bilingual (English/Chinese) notice of the provision in rule 17(2) of the Rules, (ii) a bilingual (English/Chinese) sample of Form 5 of the Rules, and (iii) full address of the Registrar referred to in rule 17(2) of the Rules in English and Chinese;

(h) costs of the Applicant’s application for service of the Application and Amended Application on the Respondent out of jurisdiction, including costs of the hearing before me on 13^th October 2008, be reserved;

(i)    the Applicant’s own costs be taxed in accordance with Legal Aid Regulations;

(j)    this Order shall be drawn up in Chinese.

22. Ms Koon applied for service of the Summons and Koon’s Affirmation out of jurisdiction by relying on the grounds as set out in the 2^nd Affirmation and Chan’s Affirmation. So in respect of the Summons, I also granted the following directions :

(a)  the hearing of the Summons issued by the Insurer dated 5^th March 2008 be adjourned to 7^th March 2009 at 9:30am before the employees’ compensation judge in chambers (open to the public) at Court No.9 of the District Court, Wanchai Law Courts, No.12 Harbour Road, Hong Kong;

(b) leave to the Insurer to serve the Summons and Koon’s Affirmation both dated 5^th March 2008 and this Order on the Respondent Yang Fang Lang formerly trading as Sinon Orchids Nursery out of jurisdiction pursuant to Order 11 rule 9 of the RDC at the Taiwan Address or elsewhere in Taiwan;

(c) costs of the Insurer’s application for service of the Summons and Koon’s Affirmation both dated 5^th March 2008 on the Respondent out of jurisdiction, including costs of the hearing before me on 13^th October 2008, be reserved;

(d) the Applicant’s own costs be taxed in accordance with Legal Aid Regulations;

(e)  this Order shall be drawn up in Chinese.

23. Subsequent to the hearing, I discovered that the date of the adjourned hearing of the Amended Application and the Summons of 7^th March 2009 was an inadvertent error since there will be no sitting on Saturday. I now direct that the adjourned hearing be returnable at 9:30am on 6^th March 2009.

24. Further, for completeness’ sake, in respect of the direction in paragraph 21(g) above, the reference to “Order 11 rule 1 of the RDC” should read as “Order 11 rule 1 of the RDC and rule 14 of the Rules”, and in respect of the direction in paragraph 22(b) above, the reference to “Order 11 rule 9 of the RDC” should read as “Order 11 rule 9 of the RDC and rule 14 of the RDC”.

25. At the hearing before me, neither Mr Chan nor Ms Koon prepared any draft order in respect of their respective ex-parte applications for service of the relevant process out of jurisdiction. Solicitors of the party making an ex-parte application should submit a draft order for the court’s consideration, and it is not for the court to frame and write up the directions. In future, the party having carriage of the ex-parte application should set out in precise terms the directions he seeks by way of a draft order, failing which the court may defer consideration of such ex-parte application until the draft terms of the order sought are submitted.

III.  Service out of jurisdiction

26. In this modern age of globalisation, cross-border movement of employers and employees is not unusual. Overseas individuals or businesses may employ personnel in Hong Kong, and local personnel may go and work abroad. Nowadays, it is not unusual to discern elements that touch on Mainland China, Macau and/or Taiwan in employees’ compensation proceedings that may necessitate applications for service of process out of jurisdiction.

27. However, given the special nature of employees’ compensation cases and the relevant statutory scheme, the court in granting leave for service abroad will require appropriate modification of the usual directions so as to meet the statutory requirements of employees’ compensation cases. If these necessary adjustments are overlooked, such laxity may lead to substantial delay and costs. Consequently, practitioners should take due care to ensure that all relevant directions are appropriately adjusted for employees’ compensation proceedings generally and for the particular circumstances of the cases to hand when applying for service out of jurisdiction. I will discuss below some of the general considerations, but they do not and should not set exhaustive parameters. After all, procedural directions must retain sufficient flexibility to cater for the particular circumstances of each case that comes before the court.

28. The starting point with service of the Application in employees’ compensation proceedings is rule 17(1) and (2) of the Rules :

“(1)  As soon as an application …… has been lodged, the registrar of the court shall cause a copy thereof to be served upon the respondent together with a notice in Form 4 in the Schedule informing the respondent that he must lodge with the registrar of the court such an answer as set out in paragraph (2) within the period therein stated, and that in default of his complying with that paragraph or of his appearing at a time and place fixed in the notice, such order may be made as the court deems just and expedient. Save with the written consent of the respondent communicated to the registrar of the court, not less than 1 month shall elapse between the date of the service of the notice upon the respondent and the date fixed for hearing the application.

(2) If the respondent intends to oppose an application he shall, within 21 days after service of the notice, or within such extended period as the court may upon special request allow, lodge with the registrar a written answer in Form 5 in the Schedule containing a concise statement of the extent and grounds of his opposition.”

29. A number of matters are evident from the above :

(a)  The applicant lodges the Application with the Registrar (ie files such document with the District Court Registry).

(b) The Registrar issues the Form 4 notice which sets out the date of the first call-over hearing of the Application and gives a reminder for filing the Answer.

(c)  The Registrar takes steps to serve the Application and the Form 4 notice on the respondent more than one month before the first call-over hearing.

(d) Because of the statutory requirement that not less than one month shall elapse between the date of service of the Form 4 notice and the date of the first call-over hearing, the Registrar has to time the service of the Application and the Form 4 notice rather nicely.

30. However, the Rules provide for the Registrar to serve the Application and the Form 4 notice on the respondent where the respondent has an address for service or has a solicitor or authorised agent for accepting service within Hong Kong. This is evident from rule 13 of the Rules which provides inter alia as follows :

“Save as is otherwise specially provided in the Ordinance or these rules, the following provisions shall apply to service of applications …… notices …… which, by the Ordinance or the rules made thereunder, are required to be served on any person who resides in Hong Kong or who has an address for service in Hong Kong or who has authorized a person resident in Hong Kong to accept service on his behalf -

(a) Service may be effected by sending (within 24 hours after the document to be served has been lodged with the registrar of the court) a copy thereof by prepaid registered post to the party to be served at his address for service. ……

(b) Where a party to an application employs a legal practitioner for the purposes of the application, service upon that party may be effected by delivery of the document at the office of such legal practitioner.

(c) Service may also be effected through the bailiff of the court in the manner provided by the rules governing service of summons in actions in the court.

(d) Service may be validly effected in any other manner, provided that a receipt, stating the date and hour of service signed by the person to be served or by a person entitled to give such receipt on his behalf, is endorsed on the document or on a copy thereof.” (my emphasis)

31.Presently, the Registrar serves the Application and the Form 4 notice on the respondent by registered post. Where the respondent’s address for service is outside Hong Kong, it falls outside rule 13 of the Rules. Apart from rule 14 of the Rules (which I will discuss below), rule 15 of the Rules provides inter alia that “[save] where other provision is made, service shall be effected by or at the instance of the parties”.

32.Mr Chan argued that rule 14 of the Rules governs service of process out of jurisdiction in employees’ compensation proceedings. Rule 14 of the Rules provides inter alia as follows :

“Where any respondent to an application either does not come within the provisions made in the preceding rule, or cannot be served in any of the manners provided in that rule, the court may, upon application ex parte supported by an affidavit stating the circumstances, direct in what manner service shall be effected upon him, including service by newspaper advertisement; and service in accordance with such directions shall be valid and effectual.” (my emphasis)

33.In support of such contention, Mr Chan relied on Hong Kong Civil Procedure 2008 Vol.2 para.K1/21/2 at p.785 which provides inter alia as follows :

“(4)  There are simplified rules for service of applications and other documents in Employees Compensation Ordinance proceedings under rr. 13 to 15 of the [Rules]. Rule 13 deals with service in Hong Kong. …… Rule 14 deals with service in cases not falling within r.13, i.e. service out of Hong Kong or where in any event substituted service is required. An application for an order under r.14 is made ex-parte supported by affidavit. Except for the originating application, which will be served by the Registry, service of documents is to be effected by the parties, not the court (r.15). ……”

34.Even so, it is in my view still necessary to consider the requirements of Order 11 of the RDC. Section 21(1) of the Ordinance provides inter alia as follows :

“Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply.”

35.In Li Kwok Shing, a case which dealt with the interplay between Order 22 of the RDC and rule 20 of the Rules in relation to payment into court, Woo JA held at para.26 that “the proper interpretation is that a particular rule of the RDC only has no effect on EC claims so long as it conflicts with one or more rules of the [Rules] made under s 50 of the [Ordinance]. In my judgment, there is no conflict between Rule 20 of the [Rules] and O 22 of the RDC”, and hence Order 22 was applicable (see also Sun Jianqiang v Trans-island Limousine Service Limited CACV20/2003 (unreported, 17^th November 2003)).

36.Having considered the provisions of Order 11 of the RDC, in particular the general provisions therein for service out of jurisdiction (see Order 11 rules 5-8A of the RDC) and the provisions for service abroad of non-originating processes and summonses etc in existing proceedings (see Order 11 rule 9 of the RDC), I am of the view that Order 11 of the RDC is not inconsistent or in conflict with rule 14 of the Rules. Rather Order 11 of the RDC supplements the sparsity of the provision in rule 14 of the Rules by, say, providing guidance on the “circumstances” to be deposed in the affidavit in support of the ex-parte application, and filling in the lacuna on the proper modes of service abroad.

37. In my view, Order 11 of the RDC is applicable mutatis mutandis to employees’ compensation proceedings with suitable modifications in light of, say, the absence of any provision for acknowledgment of service of the Application under the employees’ compensation statutory scheme.

38. Given the requirements in both the Rules and the RDC in relation to service abroad, the court is likely to exercise its discretion to direct that service of the Application and the Form 4 notice shall be effected by or at the instance of the relevant party, eg the applicant in respect of the originating Application.

39. Further, in making the ex-parte application for service of process out of jurisdiction, the supporting affidavit (which should be accompanied by a draft order) should state the following :

(a)  the grounds on which the application for service abroad is made;

(b) the grounds for showing a good arguable case on jurisdiction and a serious issue to be tried for the relief claimed;

(c) that in the deponent’s belief the applicant has a good cause of action;

(d) in what place the respondent is or probably may be found;

(e)  where the claim is brought against a respondent duly served within or out of the jurisdiction and another person out of the jurisdiction is a necessary or proper party thereto, the grounds for the deponent’s belief that there is between the applicant and the respondent on whom the application has been served a real issue which the applicant may reasonably ask the court to try;

(f)   whether any sub-rule of Order 11 rule 1 or rule 9(4) of the RDC or any provision in the Ordinance and/or the Rules is relied on;

(g) whether the Form 4 notice has been issued and if so, the date, time and court venue of the first call-over hearing specified therein;

(h) whether the said first call-over hearing specified in the Form 4 notice ought to be adjourned in light of the intended service abroad, and if so, whether any fresh Form 4 notice is required to be issued by the Registrar;

(i)    if so, the date or the time period within which the call-over hearing can be restored for hearing;

(j)    whether there should be extension of time for the respondent to file the Answer under rule 17(2) of the Rules and if so, specify the proposed extension of time;

(k) all other circumstances and/or information as the court may reasonably require for the purpose of enabling it to properly deal with the ex-parte application.

40. In respect of the adjournment of the first call-over hearing specified in the Form 4 notice referred to in paragraph 39(h) above, since at least one month should elapse between the date of such call-over hearing and the date of service of the Form 4 notice pursuant to rule 17(1) of the Rules, the supporting affidavit, which must be frank, will need to spell out the estimated time required for effecting the proposed mode of service abroad to satisfy the court that sufficient time will elapse between effecting such service as proposed by the applicant and such call-over hearing.

41. However, in granting leave for service out of jurisdiction, the court does not endorse or accept the mode of service abroad that may be deposed in the supporting affidavit as the proper mode of service. The court considers the information in the affidavit for the limited purpose set out in the above paragraph. It is only after the court grants leave and service out of jurisdiction is effected that the court will consider the propriety of the mode of service actually adopted as specified in the affidavit of service.

42. It is on the basis of the above considerations that I have granted the directions set out in paragraphs 21 and 22 above. Whilst each case must turn on its own circumstances, it is hoped that practitioners will bear the above considerations in mind when making applications for service out of jurisdiction in employees’ compensation cases, and have regard to their relevance or otherwise to the case at hand.

Representation:

Mr Chan Kar Fung of Messrs K F Chan & Co for the Applicant.

Ms Jay Koon of Messrs Szwina Pang, Edward Li & Co for the Intended Respondent.