RAI DHAKABIR v. HONTRADE ENGINEERING LTD

DCEC 630/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYMEE’S COMPENSATION CASE NO. 633 OF 2011

____________

THE MATTER OF AN APPLICATION

BETWEEN

RAI DHAKABIR Applicant

and

HONTRADE ENGINEERING LIMITED Respondent

____________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing and decision: 24 November 2011

Date of handing down written reasons: 25 November 2011

REASONS FOR DECISION

1. In the present case, the Applicant (“RD”) claims against the Respondent (“HEL”) for compensation for injury at work in 2009 pursuant to the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”). RD claimed to have worked as an employee of HEL since 25 September 2009 and when the accident at work happened on 30 November2009. The alleged employment relationship is disputed.

2. By summons dated 10 November 2011, HEL applied for specific discovery of documents against RD.

3. At the end of the hearing, I dismissed the application with costs to RD in any event to be taxed, if not agreed. RD’s own costsshall be taxed in accordance with Legal Aid Regulations. I now record my reasons.

4. The principles governing specific discovery of documents under O.24 of the Rules of the District Court are well established. Theclass of document sought to be disclosed, if believed to exist, must be relevant to the questions in the case.

5. In the summons, the documents being requested are set out as follows:

“…… all documents including the application form submitted to the Social Welfare Department to apply for the Certificate ofComprehensive Social Security Assistance for the period from 19 February 2009 to 31 May 2010.”

6. Reading the court file, including the most recently filed witness statement of RD, I was at a loss as to how such request for discoverycame about. There was no affidavit in support of the application. Nor was there skeleton submission illustrating the background includingthe parties’ pre-application correspondence.

7. It was only during the hearing when Mr Wang for HEL sought to produce 2 sets of documents that were said to be relevant to my considerationof the application, namely: a Certificate of Comprehensive Social Security Assistance Recipients (for Medical Waivers) (“the Certificate”)and the pre-application correspondence between the parties. Mr Wang confirmed that the Certificate was what was referred to in thesummons.

8. The Certificate was among the documents disclosed by way of list of documents that RD has served on HEL but yet to file. It wasissued by the Social Welfare Department (“the Department”) to certify the waiver of medical fees at public hospitals and clinicsfrom 19 February until 31 May 2010 on the basis that RD was a recipient of public assistance.

9. In the circumstances, the only sensible way to construe the class of documents defined in the summons was to place “including the application form” between a pair of commas. The other construction, by adding a comma before “including the application form”, would render the reference to “all documents” undefined.

10. I therefore proceeded to consider this as an application for the disclosure of all documents submitted to the Department to applyfor the Certificate, the application form being one of them. The Certificate was issued on 19 May 2009. The application for the Certificatemust therefore precede its issue on that day.

11. By letter dated 6 September 2011, HEL’s solicitors pointed out the Certificate revealed that RD was in fact a recipient of publicassistance during the period when he was allegedly employed by HEL. They somehow took the view that “in order to clarify our suspicion that he might be just a self-employed person during the time of the accident in order to obtainCSSA”, the documents being requested should be disclosed.

12. It was not readily apparent how the documents requested are relevant to the issue of whether RD was working as an employee or self-employedcontractor of HEL when he met the accident at work on 30 November 2009.

13. Mr Wang tried to suggest the kind of information that RD might have declared in these documents submitted to the Department. However, any material relied on in support of the application for specificdiscovery, particularly when it is not apparent from the parties’ correspondence, should have been put forward and explained byway of affidavit. As mentioned, no such affidavit was filed.

14. Even assuming that RD had declared the capacity in which he had worked or was working in the documents submitted to apply for theCertificate, this hardly cast light on whether he worked as an employee of or independent contractor for HEL subsequent to the applicationand when he met the accident on 30 November 2009.

15. A person may work as a self-employed contractor on one day; but as an employee on the other day. What matters is the actual arrangementbetween the parties at the material time. This is a question of fact. The law in this respect is clear: see Poon Chau Nam v Yim Siu Cheung, FACV 14/2006. In their letter dated 8 November 2011, the solicitors for RD replied to the similar effect.

16. Mr Wang suggested that the documents requested are relevant to the issue of quantum. This was because RD was supposed to inform the Department of any change in his employment status, particularly if he allegedly started to work for HEL and had been earningincome since late September 2005. However, the summons did not seek for the documents relating to report of change in employmentstatus.

17. The documents requested related to RD’s application that led to the Certificate of waiver of medical fees in May 2009. The documentsmust be dated before the time when RD allegedly started working for HEL. These documents hardly cast any light on the income thatRD now alleges to have received from HEL since he started working for HEL in September 2009.

18. Lastly I should mention two things: First, whether RD might have withheld from the Department his alleged employment and incomeso as to retain his eligibility to public assistance is a question of his accountability to the authority or even potential criminalliability. This is not going to affect his entitlement to compensation in accordance with the Ordinance, if he manages to prove thatat trial. Second, Mr Wang’s suggestion that the documents requested will be relevant to his client’s consideration of the meritsand RD’s without prejudice offer for settlement is difficult to follow.

19. I therefore dismissed the application.

Simon Leung
District Judge

Mr LEE Man Kin of Messrs David Ravenscroft & Co for the Applicant upon the assignment of the Director of Legal Aid

Mr WANG Ho Yin Patrick of Messrs Huen & Partners for the Respondent