HOSSAIN MD FARUK v. KHAN, FAQERGUL (簡誠諾) formerly known as KHAN, WAJID t/a PESHAWAR AUTO DISMENTLING & GENERAL TRADING CO

DCEC 1221/2017

[2022] HKDC 125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1221 OF 2017

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DECISION

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1.  The trial in these proceedings has been scheduled to commence on 15 February 2022, with 16 February 2022 and 17 February 2022 reserved. By a summons dated 24 January 2022 (“the Summons”), the respondent seeks an order to vacate the trial dates and for consequential directions. The Summons is supported by an affirmation made by the respondent dated 24 January 2022 (“the supporting affirmation”). The respondent’s application is opposed by the applicant.

2.  In these proceedings, the applicant’s case is that as a result of an accident occurred on 14 November 2015 arising out of and in the course of employment with the respondent, the applicant has sustained injuries.  The applicant said that he was a labourer of the respondent’s scrap yard as from September 2015 for a monthly wage at HK$6,500.  The respondent’s case is a straight denial. The respondent denied that there was ever an employer-employee relationship between him and the applicant.  He also denied any acquaintance with the applicant, and he denied having any knowledge regarding the said accident.

3.  For the purpose of the Summons, the essential facts are set out in the table below.  For ease of reference, I have incorporated the matters set out in the supporting affirmation into the table.  However, for avoidance of doubt, I make no comment on the veracity of those matters.

Date	Event
29 December 2020	Order made by HHJ H. Au-Yeung, giving leave to set down this action in the fixture list for trial before a judge with 3 days reserved.
26 February 2021	The parties’ respective solicitors attended the Listing Office and fixed the trial dates, i.e. from 15 to 17 February 2022.
7 August 2021	The respondent travelled back to his hometown in Pakistan to visit his family members.
12 August 2021	A traffic accident occurred in Pakistan.  The respondent’s younger brother passed away as a result of this traffic accident.  The respondent suffered serious injuries in the accident.
13 August 2021	The burial of the respondent’s younger brother took place.
16 August 2021	The respondent went to see a private doctor.  The doctor prescribed that the respondent had sustained serious injuries and should have complete bed rest for 60 days.
18 October 2021	The respondent went to see the doctor again.  The doctor stated that the respondent would need to take some further medicine and would need to receive physiotherapy.   The doctor was of the opinion that the respondent would need to have bed rest for 2 more months.
20 December 2021	The respondent went to see the doctor again.  The doctor said that surgery might be necessary if the respondent’s situation is worsened.  The doctor further recommended the respondent to have complete bed rest for 2 more months.
After 20 December 2021, but in December 2021	The respondent contacted his solicitors representing him in this case and discussed the situation.  The respondent planned to return to Hong Kong to attend the trial.  The respondent wanted to continue his bed rest, and to wait until first week of January to book his plane ticket to fly back in mid-January.
5 January 2022	HKSAR Government banned flights from Pakistan to Hong Kong as from 8 January 2022 due to the pandemic situation.
12 January 2022	The respondent’s solicitors wrote to the court and said that the respondent intended to make an application to vacate the trial dates.
13 January 2022	The applicant’s solicitors wrote to the court and indicated that the applicant would oppose the application intended by the respondent.  In the same letter, the applicant’s solicitors also said:- “… the Respondent has failed to mitigate the prejudice on the Applicant as he has not attempted to give evidence by video-link evidence in order to not disrupt the flow of trial. However, should the Respondent make an application for video-link evidence one month before the trial; it ought to be contested by the Applicant as it does not give ample opportunity to the Applicant to ensure a fair-trial has been rendered in order to conduct fair cross-examination of the Respondent.”
14 January 2022	I directed that the respondent should make the application by an inter partes summons supported by affidavit/affirmation.
25 January 2022	The respondent’s solicitors took out the Summons and filed the supporting affirmation.

4.  It is indisputable that the trial dates are milestone dates and cannot be varied in the absence of most exceptional circumstances.[1] Counsel for the respondent relies upon Samuel Tak Lee v Tsang Chiu Wing Florence[2] and submits that the court may vary the milestone dates in the absence of any exceptional circumstances.  In that case, the learned judge said that the requirement for exceptional circumstances does not exist under Order 25 rule 1B(1), which entitles the court, of its own motion, to vary the timetable fixed by it under Order 25 rule 1A.  I am unable to accept counsel’s submission.  Even assuming that the point in the Samuel Tak Lee case is correct, that point cannot assist the respondent.  The respondent is now asking the court to allow his application to vacate the trial dates.  The court is not considering vacating the trial dates on its own motion. 

5.  In my view, there cannot be any exceptional circumstances, let alone most exceptional circumstances, justifying vacating the trial dates.  The trial dates were fixed in February 2021.  Even assuming all the matters mentioned in the supporting affirmation are true, it is inexplicable why the respondent did not make an application for leave to enable him to give evidence through VCF shortly after 5 January 2022.  The respondent is legally represented in this case.  His legal representatives can handle the trial on his behalf.  The only matter which the respondent would need to do is to give evidence in the trial, for he is the only witness in his case.  However, nowadays, a witness not in Hong Kong may give evidence through VCF. 

6.  In respect of giving evidence through VCF, the respondent said the following in the supporting affirmation:-

“23. In addition to this application, I have been advised by my solicitors and I believe that I should seek alternatives before attempting to vary the trial dates. My solicitors have advised me that I am able to give evidence by video-link. My solicitors have advised that I should make a formal application to do so. However, I believe it is impractical to give evidence through this medium as I do not have the appropriate conferencing facilities.

24. Furthermore, I have been advised by my solicitors that the Plaintiff may wish their own representatives to be present in the room with me when I give evidence. The Plaintiff may wish to do so to ensure the integrity of the proceedings, creating further logistical barriers.

25. Alternatively, I am able to apply to the Pakistani Courts, where they have both the technological means and facilities to allow me to give evidence. However, I am advised by my solicitors that this will require time which may inevitably will[3] delay the trial.

26. By the reasons above, I respectfully request the court to grant leave to vacate the trial date due to my exceptional circumstances.”

7.  What has been said by the respondent in the supporting affirmation cannot be satisfactory explanation as to why he did not make a formal application for leave enabling him to give evidence through VCF.  He himself may not have the necessary conference facilities.  However, he has not said that the necessary conference facilities would not be available to him even after making reasonable effort to try to have access to the same.  The respondent can try to buy or rent a computer with the conference facilities therein.  He may also try to rent a room in a business centre with video conference facilities.  All these have not been done by the respondent.

8.  No doubt that the applicant may want to have an observer at the place from where the respondent would give his evidence.  However, the ball is in the respondent’ court in the first place.  The respondent should make an application for leave to give evidence through VCF first.  The respondent should let the court and the applicant know the place from where he is prepared to give evidence through VCF.  After knowing this, the applicant would consider how to engage an observer in that place.  The fact that it would be necessary to have some discussion with the applicant does not mean that giving evidence through VCF is impractical.

9.  This court would not require the respondent to give evidence through VCF from a court in Pakistan.  If leave is given to the respondent to give evidence through VCF, the respondent would only be required to give evidence from a neutral place, i.e. a place which has no connection with the applicant or the respondent.

10.  Even assuming all the matters said in the supporting affirmation are true, there is no satisfactory explanation as to why an application for leave to give evidence through VCF is not made shortly after 5 January 2022.  In fact, up to now, no application for VCF evidence is made by the respondent.

11.  In my judgment, there is no exceptional circumstance justifying vacating the trial dates.  The respondent’s application as per the Summons must be refused. 

12.  I am fully aware that refusing the respondent’s application would mean that the respondent would not have an opportunity to give evidence to support his case in the trial.  I have considered whether this is a proportionate measure which I should adopt.  After all, the primary aim in exercising the powers of the court is to secure the just resolution of the dispute herein in accordance with the substantive rights of the parties.[4]

13.  In the circumstances of this case, I am of the view that although maintaining the trial dates would mean that the respondent would have no opportunity to give evidence in the trial, this is still a proportionate measure.

(1)     Notwithstanding the advice given to him by his solicitors, the respondent has decided not to make an application for leave allowing him to give evidence through VCF.  This is his informed choice, and the respondent should face the consequences of his choice.

(2)     The respondent has not put forward a positive case and his case is a bare denial.  The only witness statement filed by the respondent is his witness statement dated 14 November 2019.  In that witness statement, after mentioning his background and his business, the respondent said:-

“The Alleged Accident

6. I categorically deny employing the Applicant in any capacity.

7.     I am not acquainted with the Applicant.  I understand that the Applicant is a non-refoulment claimant.  It is a known fact that employing such a person is illegal.  I am a law-abiding citizen and would not do anything illegal.

8.     I operated this business on Sole Proprietor basis.  I was also responsible for hiring and I ran the business operations alone.”

(3)     It is clear that the respondent is denying the existence of any employer-employee relationship between him and the applicant at the time of the accident alleged in the applicant’s case.

(4)     With or without the respondent’s evidence, the applicant would need to prove the employer-employee relationship in order to succeed.  The burden of proof is on the applicant.  Counsel for the respondent would have the opportunities to cross-examine the applicant’s witnesses and to make comments on the documentary evidence.  All these rights of the respondent would not be affected by the absence of the respondent’s evidence in the trial.

(5)     The alleged accident occurred on 14 November 2015, which is more than 6 years ago.  The dispute herein should be resolved as soon as practicable without delay.  The trial should not be postponed in the absence of any most exceptional circumstances.

14.  For the reasons above, I dismiss the Summons.  Counsel for the applicant submits that costs of the Summons should be to the applicant in any event.  I accede to this request and so order.  I also grant a certificate for counsel. Those costs are to be taxed if not agreed.

15.  Counsel for the applicant also submits that there should be a wasted costs order against the respondent’s solicitors, requiring the respondent’s solicitors to bear the costs of the Summons personally.  I decline to do so.  It became not possible for the respondent to come back to Hong Kong because of the change of policy by the HKSAR Government on 5 January 2022.  As per the supporting affirmation, the respondent’s solicitors have advised the respondent to try to give evidence through VCF.  It is the respondent’s decision not to adopt that course.  On 12 January 2022, the respondent’s solicitors have written to the court and to the applicant, indicating that the respondent intended to make an application for an order vacating the trial dates.  Although the formal application was only taken out on 25 January 2022, one has to bear in mind that it would take some time to obtain the supporting affirmation made by the respondent in Pakistan.  In the circumstances, I am of the view that the respondent’s solicitors cannot be criticized as having acted unreasonably in any aspect.

16.  It remains for me to thank counsel for the assistance rendered to the court.