TOP CATERING DEVELOPMENT LTD v. CHAN SZE NGA FIONA t/a TASTY

HCA 1817/2015
[2018] HKCFI 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1817 OF 2015

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J U D G M E N T

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1.  By summons dated 15 January 2018 listed for hearing at the PTR held on 17 January 2018, the Plaintiff applies for leave to file and serve a supplemental witness statement of its director Mr Ng Wai Wing (“Ng”). While the supplemental statement itself consists only of 8 short paragraphs, the substance of the evidence is contained in the statement’s 5 annexures totaling over 90 pages. These annexures are the police statements made by 4 persons on 7 April, 16 May, 26 July and 16 December 2017. These 4 persons are Mr Poon Yik Leung (“Poon”), Mr Zheng Yuanqin (“Zheng”), Mr Kwok Hung (“Kwok”) and Ng himself who has made two statements to the police.

2.  Ng and Poon are the only two witnesses who will testify on behalf of the Plaintiff at the trial scheduled to commence on 17 April 2018, with 6 days reserved.  When asked by this court at the PTR, Mr Yeung confirmed that the Plaintiff does not intend to call Zheng or Kwok as witnesses at the trial.

3.  The application is opposed by the Defendant.

4.  The Plaintiff and its predecessors have been running a canteen of China Merchants Container Services Limited (“China Merchants”) since June 2003 under a series of written catering services contracts between China Merchants and the Plaintiff’s predecessors / the Plaintiff itself (“Main Contract”).

5.  In September 2012, the Plaintiff and the Defendant entered into a written catering services sub‑contract (“Sub‑Contract”) pursuant to which the Defendant agreed to perform the Plaintiff’s obligations under the Main Contract to run the canteen.  The Plaintiff’s case is that the Sub‑Contract was supplemented by a number of oral agreements between the parties. 

6.  The Plaintiff alleges that the Defendant was in breach of the terms of the Sub‑Contract and oral agreements by reason of its sub‑standard services, as a result of which it terminated the Sub‑Contract in August 2014.  The Plaintiff’s complaints of the Defendant’s sub‑standard services were pleaded in paragraphs 11 to 15 of the Statement of Claim as follows:

“11. In breach of the Sub‑Contract, the Defendant had failed to provide its catering services in accordance with its terms and conditions, with reasonable skill and care and/or in compliance with all reasonable requirements, suggestions and/or requirements made by CMCSL[1] from time to time, such failure including the following (amongst other) matters:

(1) its repeated failure to eliminate or reduce the number of flies in the Canteen (including the kitchen thereof) or otherwise maintain its hygiene to the satisfaction of CMCSL;

(2) its repeated failure to ensure that its staff would not smoke, and would not leave cigarette butts, in the Canteen (including the kitchen thereof) and in its vicinity;

(3) its provision of expired processed food (including expired prawn crackers and expired salted seaweeds) to customers at the Canteen;

(4) its repeated provision of sub‑standard food at the Canteen (including soup that was of little (if any) taste; rice that had not been properly cooked; food that was left cold; and food with remains of flies, cockroaches, other insects, hair, plastic wrapping and metal wires);

(5) its repeated failure to provide any or any sufficient food for CMCSL’s staff members at regular service hours;

(6) its repeated failure to provide fruit or dessert (or proper fruit or dessert) to visiting staff members of CMCSL as part of their set lunches;

(7) its offer of alcoholic beverages for sale at the Canteen without any or any proper licence and in flagrant contravention of CMCSL’s regulations;

(8) the poor attitude of Ms Ko and other staff of the Defendant towards the staff of CMCSL (including its senior executives);

(9) its repeated failure to replace damaged plastic table covers at the Canteen;

(10) its unilateral decisions to change the prices on the Canteen menu without any or any proper prior consultation and agreement with the Plaintiff; and

(11) its devotion of insufficient staff, time or both to the business and operation of the Canteen, causing and/or contributing to (amongst others) the matters referred to above and the substandard catering services at the Canteen generally.

12. By reason of the matters as referred to in the foregoing paragraph, CMCSL had issued a large number of warning or complaint letters to express its dissatisfaction with the Defendant’s catering services provided at and/or for the Canteen, including (but not limited to) CMCSL’s letters dated 26 December 2012, 6 February 2013, 10 July 2013, 6 August 2013, 4 September 2013, 16 October 2013, 15 November 2013, 9 December 2013, 9 June 2014, 27 June 2014, 12 July 2014 and 4 August 2014.

13. By CMCSL’s letters to the Plaintiff dated 9 June 2014 and 4 August 2014, CMCSL specifically requested and/or suggested that the Plaintiff should terminate the Sub‑Contract by reason of the Defendant’s sub‑standard catering services provided at and/or for the Canteen and that failing termination of the Sub‑Contract CMCSL might itself terminate the CMCSL Contract as against the Plaintiff.

14. In the circumstances, the Plaintiff issued a letter to the Defendant dated 7 August 2014, informing the Defendant of its decision to terminate the Sub‑Contract with effect from 31 August 2014 pursuant to its right under Clause 5A thereof.

15. Moreover, CMCSL issued a letter to the Plaintiff dated 18 August 2014, informing the Plaintiff of its decision to terminate the CMCSL Contract with effect from 1 October 2014, expressly citing the sub‑standard catering services provided by the Defendant as the reason for its decision.”

7.  The Defendant’s case is that some of the matters complained of were pre‑existing problems before the Defendant took over the running of the canteen.  The other problems complained of were unfounded.  The Defendant alleges the Plaintiff had made certain oral misrepresentations when the parties entered into the Sub‑Contract. The Defendant further alleges the Plaintiff was in breach of the terms of the Sub‑Contract and the oral agreements and counterclaims for her losses.

8.  In the Plaintiff’s Listing Questionnaire dated 16 November 2016, it confirmed that it did not intend to take out any further interlocutory applications and that it had served all witness statements ie those of Ng and Poon.  On the basis of inter alia the Plaintiff’s Listing Questionnaire, at the hearing of the CMC on 23 November 2016, the parties consented and Registrar Lung gave leave to the Plaintiff to set the case down for trial.  The case was set down for trial on 27 February 2017.

9.  The supplemental witness statement and the annexures relate to the so‑called “faked meal tickets” allegedly issued by the Defendant’s mother Madam Ko Shuk Hing (“Ko”) who helped run the canteen.  At paragraph 13 of Poon’s witness statement, he alleged that Ko had issued 189 faked meal tickets involving a sum of HK$4,725 in order to defraud China Merchants.  Nevertheless, China Merchants had not suffered any loss and did not intend to report the matter to the police.  Poon is a manager of China Merchants in charge of administration and human resources.

10.  Notwithstanding Ko’s allegation, there was no mention of faked meal tickets in Ng’s own witness statement.  Nor is the allegation of faked meal tickets raised in the Statement of Claim.  The Plaintiff also has not made any claim against the Defendant for the sum of HK$4,725.

11.  At the risk of stating the obvious, the issues in a case are defined by the pleadings.  Since there is no mention of the faked meal tickets in the Statement of Claim, and since there is no claim by the Plaintiff against the Defendant for the sum of HK$4,725, it is difficult to see why it is necessary or relevant for evidence to be adduced in relation to them.

12.  Under RHC O 1A r 1, the underlying objectives of the Rules of the High Court are inter alia to ensure that a case is dealt with as expeditiously as is reasonably practicable, to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings and to ensure that the resources of the court are distributed fairly.  Under RHC O 1A r 2, the court is obliged to give effect to these underlying objectives when exercising any of its powers.  Under RHC O 1A r 4, the court is further obliged to actively manage cases by inter alia identifying the issues at an early stage and deciding promptly which issues need full investigation and trial.

13.  This court is of the firm view that giving leave to the Plaintiff to adduce the supplemental witness statement of Ng will seriously undermine the objectives of the Rules of the High Court.  The faked meal tickets are a non‑issue in this case.  They do not require full investigation and trial.  Allowing the Plaintiff to adduce further evidence on them will serve no purpose except to substantially prolong the trial — properly investigating the allegation concerning the 189 faked meal tickets (or the 107 faked meal tickets mentioned in Ng’s police statement) will require much more time than the 6 days allotted for the trial of this case.  In the end, whatever the result of the investigation will have little bearing on the party’s pleaded claim, defence or counterclaim.  Nor will it affect the end result of this trial.  Allowing such further evidence and such a pointless investigation is totally contrary to the objectives of promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings and ensuring the resources of the court are distributed fairly.

14.  The Plaintiff’s application is wholly unmeritorious and is hereby dismissed.  There will be an order nisi that costs of and occasioned by the Plaintiff’s application be to the Defendant, to be taxed if not agreed, with certificate for counsel.