SIU CHIN HUNG v. FLORA EDUCATION LTD

DCEC 1451/2022

[2025] HKDC 813

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1451 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR DECISION

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The Summons

1.  I have before me a summons taken out on 1 April 2025 by the Respondent (“the Summons”) for the following two applications:

(1) To further amend the Re-Amended Answer; and

(2) To adjourn the trial of this action scheduled to commence on 23 September 2025 to a date to be fixed.

2.  As a matter of background, this employees’ compensation application was made on 27 July 2022 in respect of an alleged accident happened to the Applicant on 26 August 2020. After much interlocutory matters and applications, on 21 February 2025, the trial of this case was ordered to commence on 23 September 2025 with 2 days reserved.

3.  At the hearing of the Summons, I made the following orders:

(1) Leave to the Respondent to further amend the Re-Amended Answer, only to the extent to replace the word “after” with “before” in paragraph 2(e);

(2) The Respondent shall file and serve the Re-Re-Amended Answer within 14 days from the date hereof;

(3) The application to adjourn the trial be dismissed; and

(4) Costs of and incidental to the Summons be to the Applicant, summarily assessed at $800, to be payable forthwith.

4.  These are the reasons for my decision.

The application for amendment

5.  The amendments proposed by the Respondent are as follows:

(1) replace the term “after” with “before” in paragraph 2(e); and

(2) introduce the following cases in paragraphs 3 and 4:

(a) The alleged accident was a result of the Applicant’s deliberate self-injury under section 5(2)(b) of the Employees’ Compensation Ordinance (“ECO”). The Applicant staged the accident and committed fraud; and

(b) The Applicant committed serious or wilful misconduct under section 5(3) of the ECO.

6.  Mr Choi, on behalf of the Respondent, submitted that paragraph 2(e) contains a typographical error where the phrase “after the alleged accident” should read “before the alleged accident”, and leave should be given to correct the same.

7.  The Applicant argued that it could not be a typographical error, because the same phrase (i.e. “after the alleged accident”) was repeatedly pleaded in the Answer, the Amended Answer, and the Re-Amended Answer, and it was impossible that the Respondent was unable to spot the error earlier. The Applicant argued that it was after the exchange of witness statements that the Respondent intended to change its case from “after the alleged accident” to “before the alleged accident”.

8.  In my view, whether the amendment was an error or a change of case based on new evidence will be a matter for the trial judge to consider at trial. The Applicant will be at liberty to cross-examine the Respondent’s witnesses on this issue and make submissions to the trial judge if he deems it necessary. Since there is no risk of prejudice to the Applicant from allowing the amendment, I do not see any reason why the Respondent should not be allowed to make the amendment.

9.  The situation is, however, different regarding the proposed amendments to paragraphs 3 and 4. These amendments are substantive amendments. There, the Respondent introduces certain new cases and intends to additionally rely on those grounds to deny the Applicant’s entitlement to compensation.

10.  Mr Choi argued that the amendments are necessary to enable the real questions of the case to be decided. He also argued that those amendments are for the purpose of clarifying the issues in dispute, and are merely an extension of a more detailed version of the Respondent’s original pleaded case. In addition, Mr Choi argued that there will be no prejudice to the Applicant and no direct effect on delay to the trial date.

11.  As to the delay in making the application, Mr Choi explained that the application for amendment was made in light of the medical expert evidence and Counsel’s advice. The medical expert evidence that Mr Choi referred to is the solo orthopaedic expert report of Dr Wong Lok Yan Ian dated 5 February 2025, in which Dr Wong identified certain inconsistencies between the Applicant’s alleged symptoms and the medical records, and Dr Wong opined that symptoms exaggeration could not be ruled out.

12.  Despite Mr Choi’s submissions, I refused to allow the amendment.

13.  According to the Re-Amended Answer, the Respondent denied that an accident occurred to the Applicant, and put the Applicant to strict proof of, inter alia, the occurrence of the alleged accident. The Respondent pleaded that it was unnecessary for the Applicant to go to the alleged location of the accident (i.e. the filing room) on the day of the alleged accident; that it was unnecessary for the Applicant to step onto the reams of A4 papers to reach the cabinet inside the filing room as alleged; that the Applicant taped a piece of paper to the ceiling behind the CCTV to make it unable to capture the alleged location of the accident; and that the Applicant refused to reply to the Respondent the details of the accident despite the Respondent’s request. Therefore, all along, it was the Respondent’s case that there was no accident at all. The witness statements filed by the Respondent also point to a similar direction. At no point did the Respondent run a case that the Applicant inflicted his own injury, or the injury was a result of any serious or wilful misconduct. I therefore consider that the matters proposed to be added to the Answer, as outlined in paragraph 5(2) above, are new matters.

14.  Introducing new matters at this stage requires good explanations. However, I find the explanations put forward by the Respondent insufficiently justifiable. The expert evidence relied upon by the Respondent pertains to the Applicant’s medical conditions and quantum, which could not have affected the Respondent’s factual case on liability. Furthermore, the expert report is dated 5 February 2025. There is no explanation as to why the Respondent could not have made the application soon after the Respondent received the same in early February 2025. Notably, in the Respondent’s Appendix D filed on 14 February 2025, which is after the date of the said expert report, the Respondent confirmed to the Court that the pleadings did not require amendments and that the Respondent would not take out any further interlocutory application. As to the obtaining of Counsel’s advice at a late stage, in my view, it should not be a ground to justify a delay in taking out interlocutory applications at all.

15.  Besides, the Respondent has not provided specific details regarding the alleged “self-injury” or “serious or wilful misconduct” in the proposed amendments. These are positive assertions (and the Respondent bears the burden of proof, see Hung Shing Keung v Leung Yun Sang [2024] HKCA 1048 at §17 per Kwan VP). It would be necessary for the Respondent to clearly and precisely state what the allegations are, so that the Applicant knows how to meet those cases. It would be unfair to the Applicant to guess about the mechanism of the alleged self-injury and the serious or wilful misconduct relied upon by the Respondent to deny the Applicant’s compensation claim.

16.  However, if I allow the Respondent to make the proposed amendment, the Respondent will have to first give particulars of those allegations. Assuming that this step is properly done, the Applicant will have to use the time leading up to trial to meet the new cases by adducing further evidence or filing further supplemental witness statements. Depending on what allegations the Respondent will make, there may also be further discovery. This is highly undesirable and also unfair to the Applicant who should be using the time to focus on his preparation for the conduct of the trial instead.

17.  In my view, the Respondent should not be allowed to add anything new by introducing the amendments at this stage. I therefore refused the application for amendment to paragraphs 3 and 4.

Application to adjourn the trial

18.  The basis of the Respondent’s application to adjourn the trial is the following: a key witness for the Respondent, Ms Karrie Dietz, will be unavailable to attend the trial from 23 to 24 September 2025. The reason for her unavailability is that Ms Dietz will be in the United States for her “annual trip” to visit her family from 19 September 2025 to 2 October 2025. Ms Dietz has also provided a list of dates in 2025 and 2026 that she has indicated will be unavailable, including the entire month of December 2025 and January 2026.

19.  Trial dates are milestone dates. Under O 25 r 3(3) of the Rules of District Court (Cap 336H), the Court shall not grant an application to vary a milestone date unless there are exceptional circumstances justifying the variation.

20.  I found no exceptional circumstances in this case which may justify the adjournment of trial.

21.  It appears to me that the unavailability of Ms Dietz is solely due to her own preference or convenience, rather than any emergency or necessity. There is no explanation provided as to why, for instance, she could not have rescheduled her “annual trip” to a later date. For example, as the trial is scheduled to finish on 24 September 2025, she could have visited her family after the trial and that would only cause a short delay to her trip. Furthermore, in appropriate cases (but I refrain from commenting on whether this case is an appropriate case) witnesses outside of Hong Kong may provide evidence through video link, and if so advised, the Respondent may make an application for Ms Dietz to give evidence remotely. If there is any concern that Ms Dietz will not attend the trial, the Respondent may issue a subpoena to compel her attendance.

22.  This case should be resolved as soon as practicable without delay. I particularly take into account the nature of this case, being an employees’ compensation case under the ECO. It is well recognised that the underlying objective of the ECO is to compensate injured employees speedily and with certainty: LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103 at §5 per Bokhary PJ.　 Her Honour Judge Levy also made similar observation in §45 of Chan Ki v General Security (H K) Ltd [2024] HKDC 1689 that the statutory objective of the statutory employees’ compensation regime requires such proceedings to be resolved as expeditiously as possible so that an injured employee would be able to obtain fast and quick relief.

23.  In the present case, the alleged accident occurred on 26 August 2020. By the time of the trial scheduled for September 2025, it will have been more than five years since the alleged injury. Further adjournment of trial is highly prejudicial to the Applicant.

24.  Lastly, insofar as the Respondent may ask this Court to fix the trial dates based on Ms Dietz’s future availability, I must emphasise that unless compelling reasons are given, the Court is unlikely to order a trial be fixed upon consultation of witnesses’ diaries. In any event, Ms Dietz has not provided a detailed explanation for her unavailability on the numerous dates she indicated, other than stating that she will be “unable to visit Hong Kong”.

Conclusion and costs

25.  For the above reasons, I made the Order as set out in paragraph 3 hereinabove.

26.  Mr Choi fairly accepted that costs and incidental to the Summons should be paid by the Respondent to the Applicant. I considered it appropriate to summarily assess the costs. The Applicant asked for $5,000. Mr Choi replied that it was excessive and a fair assessment should be $800 to $1,000. Having considered the submissions, I summarily assessed the Applicant’s costs at $800, to be payable forthwith.