LIU HING SANG v. ESTATE OF LI KWAN, DECEASED AND ANOTHER

HCPI 665/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 665 OF 2009

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BETWEEN

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D E C I S I O N

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I. Introduction

1.  On 20 June 2008, the Plaintiff (“Mr Liu”) suffered personal injuries as a result of a traffic accident (“Accident”).  On 16 October 2009, he commenced the present proceedings against the defendant who is now the 1^st Defendant.  On 2 March 2010, the Official Solicitor was appointed to represent the 1^st Defendant for the sole purpose of accepting service of the Writ of Summons.  On 9 April 2010, leave was granted for Mr Liu to continue the present proceedings in the absence of a person representing the 1^st Defendant.  On 7 June 2010, the 2^nd Defendant successfully applied to join as a defendant in the present proceedings.  On 7 June 2010, judgment on liability was entered in favour of Mr Liu against the 2^nd Defendant leaving damages to be assessed.  Vis-à-vis the 1^st Defendant, the issues of both liability and quantum are still at large.

2.  The Statement of Damages alleges that Mr Liu worked as a tourist guide for about 8 years before the Accident.  He first worked for Hong Tai Travel Services Limited (“Hong Tai”) from 3 July 2000 to 31 October 2007 becoming a Class B tourist guide in 2007 earning about HK$13,000.00 per month (including commission earned from overseas tours) in 2006/2007.  Since 7 April 2008, he worked for Miramar Travel Limited (“Miramar”) and during the three-month probation period he earned about HK$13,740.00 with commission from overseas tours of about HK$1,200.00 thus totalling HK$15,000.00 per month.  Mr Liu claims that but for the Accident he should be able to escort long distance tours to North America, Europe and Australia (“long haul tours”) after the probation period and thereby would have earned about HK$20,000.00 to HK$30,000.00 per month.

3.  It is further averred in the Statement of Damages that Mr Liu lost his ability to resume work as a tourist guide after the Accident, and even with best effort to adjust to light duty sedentary job he would only have been able to earn about HK$3,000.00 to HK$4,000.00 per month, so he claims for inter alia:

(a) loss of earnings from the date of the Accident to 20 September 2010 in the sum of HK$645,000.00 (ie HK$15,000.00 x 0.5 months + HK$25,000.00 being average notional future monthly earnings x 25.5 months);

(b) future loss of earnings of HK$4,128,000.00 (ie (HK$25,000.00 – HK$3,500.00) x 12 months x 16);

(c) loss of future provident fund of HK$238,650.00 (ie (HK$645,000.00 + HK$4,128,000.00) x 5%);

(d) loss of earning capacity of at least HK$250,000.00.

4.  By my amended order dated 7 June 2010 (“Amended Order”), Mr Liu was to file and serve witness statements as to fact of Mr Liu himself, Cheung Wing Chuen (“Mr Cheung”), Choi Ka Lee (“Mr Choi”), Tong Kim Sang (“Mr Tong”), Fu Wing Harbeth, Pui Ho Cheung and Chow Wai Shing (“Mr Chow”).

5.  On 22 November 2010, Mr Liu issued a summons for leave to serve his own supplemental witness statement, Mr Cheung’s supplemental witness statement and Wong Yiu Kwong’s (“Mr Wong’s”) witness statement all dated 19 November 2010, and for extension of time to comply with the outstanding case management directions granted under the Amended Order (“Summons”).

6.  In the corresponding employees’ compensation proceedings in DCEC 486/2010 commenced by Mr Liu as the Applicant against Miramar as the Respondent (“DCEC Action”), Mr Liu applied by summons dated 25 November 2010 (“DCEC Summons”) for specific discovery of the following documents (even though some requests appear to be for information rather than for documents):

(a) breakdown and calculation method for income (including but not limited to basic salary, commission, bonus and tips etc) and for tips which Mr Liu received and/or was entitled during his employment with Miramar;

(b) tour reports which Mr Liu was required to submit to Miramar after every overseas tour containing details of the number of tour customers, the date/duration of the tour, activities attended by tour customers including but not limited to shopping at designated shops, dining at designated restaurants, and participating in optional activities specified in the tour brochure;

(c) calculation method, rate and/or amount of commission which the Plaintiff was entitled for each short haul or long haul tour for (i) purchases by tour customers at designated shops specified in the tour brochure (“Shop Commission”), (ii) tour customers attending designated optional activities specified in the tour brochure (“Activity Commission”), and (iii) purchases by tour customers of souvenirs sold by overseas tour guide assigned for the tour (“Souvenir Commission”);

(d) employees’ benefits which Mr Liu was entitled;

(e) documentary support in support of (a), (c) and (d) above.

7.  Mr Liu’s affirmation in support of the DCEC Summons explains that his income from Miramar and Hong Tai essentially comprised the following:

(a) basic salary;

(b) service fee paid by tour customers that varied for each tour depending on the number of tour customers and the destination/duration of the tour;

(c) additional tips given by tour customers on each tour;

(d) Shop Commission that varied from about 3% to 5% of the price of goods purchased by tour customers;

(e) Activity Commission in respect of optional activities arranged by the travel agency;

(f) Souvenir Commission at the rate of 3% to 5% of the purchase price of the souvenirs.

Mr Liu refers to his own supplemental witness statement with documents from Hong Tai that showed his income (which supplemental witness statement is now the subject of the Summons), and says Miramar had similar documents (but he did not retain copies thereof) which he and Miramar used to calculate his commission.

8.  Mr Liu’s 3^rd affirmation filed in support of the Summons on 26 November 2010 explains that since he required a long period of rehabilitation after the Accident, he was unable to collate all information about his income as a tourist guide.  He says that the composition of a tourist guide’s earnings was rather complicated, and since he did not retain the relevant documents he had to adduce witness evidence from himself and/or his colleagues working in the same trade.

9.  In his 3^rd affirmation, Mr Liu discloses that he had issued the DCEC Summons for discovery of documents, which documents he considered to be directly relevant to and which he intended to use in the present proceedings.

10.  On 30 November and 24 December 2010 and on 23 January and 16 February 2011, I adjourned the hearing of the Summons pending the disposal of the DCEC Summons.

11.  Pursuant to the order of H H Judge ST Poon dated 8 December 2010 in the DCEC Action, Miramar filed the affirmation of Miramar’s Yau Suk-ling on 5 January 2011 (“Yau’s Affirmation”) stating inter alia that:

(a) Mr Liu was employed as Sales Consultant & Tour Escort at Miramar’s Counter Sales Department, and apart from working as tour guide, he also did tour sales service at Miramar’s branches as well as usual clerical work at the counter;

(b) according to Mr Liu’s employment contract dated 7 April 2008, his basic monthly wages were HK$1,900.00;

(c)  according to the Payment History, Mr Liu’s basic salary was HK$1,520.00 for the period from 7 to 30 April 2008 and HK$1,838.00 for the period from 1 to 30 May 2008;

(d) whilst employed by Miramar as a tour guide, Mr Liu earned service fee, additional tips and other income (including commission) on the tours he escorted, and on completion of each overseas tour he would complete/submit a tour report to Miramar who would then prepare the Payment History based on information therein;

(e)  Miramar was aware that Mr Liu and the overseas tour guide would share the Shop and Activity Commission;

(f)   Mr Liu received such commission directly from the overseas shops or organisers and would report such receipt in the tour report, and Miramar did not have any other record;

(g) Mr Liu’s tour reports for April and May 2008 showed that his tips were respectively HK$2,412.00 and HK$5,397.20;

(h) Mr Liu’s basic salary for the period from 1 to 19 June 2008 was HK$1,203.33, but Miramar could not calculate Mr Liu’s commission as he did not submit a tour report for June 2008;

(i)   according to the tour report for June 2008 annexed to Mr Liu’s supplemental witness statement (being the subject of the Summons), his tips for June 2008 were HK$3,123.20 but there was no commission;

(j)   whilst employed by Miramar, Mr Liu as a Class B tour guide escorted tours to Hainan Island (4 days), Eastern China (6 days), Malaysia (5 days) and Taiwan (4 days), but he had no experience in escorting long haul tours;

(k) Miramar did not mention/promise any plan for Mr Liu to escort long haul tours or to train him to escort long haul tours, and in any event Miramar would only arrange training programmes if new tour products were introduced;

(l)   Miramar would assess whether a Class B tour guide was suitable for promotion to become a Class A tour guide (who would escort long haul tours) by interviewing the tour guide, reviewing his annual performance appraisal, reviewing comments by tour customers and assessing his performance in marketing tour sales;

(m)   hence, Miramar never promised that Mr Liu would escort long haul tours after his probation period;

(n) Miramar disclosed (i) Mr Liu’s summary of escorted tours, (ii) escort tour income/expenditure blank form and (iii) tour report blank form.

12.  On 23 February 2011, the DCEC Action was settled by acceptance of payment into court without determination by trial.  Mr Liu considers the information as to his past earnings as disclosed in the DCEC Action to be relevant to the present proceedings.  By a summons filed in the DCEC Action on 6 May 2011, Mr Liu applied for leave to disclose and use all information and documents disclosed in the DCEC Action in the present proceedings, and filed his 3^rd affirmation dated 29 April 2011 in support of such application.  On 9 June 2011, Deputy District Court Judge Thomas Lee granted leave for Mr Liu to disclose and use in relation to the present proceedings and for no other purpose Yau’s Affirmation which set out Mr Liu’s earnings whilst employed by Miramar.

13.  On 23 September 2011, I directed that the Summons be adjourned for argument, and such hearing came before me on 30 November 2011.

14.  At the hearing before me, Ms Wong, solicitor for the 2^nd Defendant, confirmed that the 2^nd Defendant no longer opposed leave being granted for the Plaintiff to serve his own supplemental witness statement, and I granted retrospective leave accordingly.

II. Existing witness statements

15.  I summarise below the existing witness statements insofar as they relate to the earnings and work as a tourist guide.

16.  In Mr Liu’s witness statement dated 5 July 2010,

(a) he reiterates the matters set out in paragraph 2 above;

(b) he says that had he been able to complete his probation at Miramar, he should have been able to escort long haul tours and earn at least HK$20,000.00 to HK$30,000.00 per month and after 2 years earn HK$60,000.00 to HK$80,000.00 per month;

(c)  he further says that but for the Accident he would have developed his potential and career at Miramar.

17.  Mr Cheung’s witness statement dated 4 November 2009 states inter alia that:

(a) he worked for Hong Tai since August 1997 and  was promoted as tour coordinator in about 1998;

(b) at that time he was a Class A+ tour coordinator responsible for escorting tours to South-east Asia and China;

(c)  in 2007/2008 and 2008/2009, his annual Hong Kong income was respectively HK$136,647.99 and HK$150,760.00, and his annual overseas Shop and Activity Commission and tips from tour customers were about HK$60,000.00 for each period;

(d) under Hong Tai’s promotion structure, tour guides above Class B could apply to become long haul tour guide trainees upon satisfactory work performance and passing an English proficiency test, and after having 1-3 years of experience as trainees escorting long haul tours they could be promoted to become long haul tour guides;

(e)  he understood the annual income of long haul tour guides exceeded that of Class A+ tour guides by about HK$70,000.00 to HK$90,000.00, and the monthly income of experienced long haul tour guides was about HK$40,000.00;

(f)   since 2006 Hong Tai lost about 20 odd good tour guides of Class B above to Miramar because Miramar adopted a progressive policy to attract long haul tour guides from other travel agencies which greatly increased the promotion prospects of their tour guides;

(g) he came to know Mr Liu who also worked at Hong Tai in 2000, and knew Mr Liu joined Miramar in early 2008 with a view to become a long haul tour guide;

(h) he recollected that Mr Liu was healthy and active, diligent, honest and friendly with knowledge of various languages/dialects and performed well in his work, so but for the Accident Mr Liu should have been a good long haul tour guide.

18.  Mr Choi’s witness statement dated 3 May 2010 states inter alia as follows:

(a) he joined Hong Tai as tour guide in October 1997, and was promoted to become branch supervisor in 2006;

(b) he left Hong Tai in July 2008 and joined China Travel Agency in December 2008;

(c)  he had a positive impression when he assessed Mr Liu’s work performance in 2005/2006, and Mr Liu was promoted once whilst under his supervision;

(d) he knew Mr Liu was promoted thrice between 2007 and 2009, and by the time Mr Liu left Hong Tai in early 2009 he was a Class B+ tour guide;

(e)  from his experience of managing a travel agency, a short haul Class B+ or A+ tour guide normally earned HK$15,000.00 to HK$20,000.00 per month, and a long haul tour guide’s average monthly income was about HK$40,000.00;

(f)   he reiterates the matters in paragraph 17(d) and (f) above;

(g) he believes that but for the Accident Mr Liu would shortly have become a long haul tour guide and would have been successful in his career as such since Mr Liu performed well at Hong Tai.

19.  Mr Chow in his witness statement dated 8 April 2010 states inter alia as follows:

(a) he joined the tourism industry in 1996 and worked as tour guides for Wing On (1996-2000), Sunflower Travel (9 months in 2000) and Goldjoy (2001-2005);

(b) in the first 2 years he only escorted short haul tours to South-east Asia and China, but since January 1998 he escorted long haul tours;

(c)  since 2000 he became a freelance tour guide and worked for different travel agencies escorting overseas tours for 2-3 months a year;

(d) he described the work/duties of and the abilities required for a long haul tour guide;

(e)  he says a long haul tour guide could on average earn HK$50,000.00 to HK$60,000.00 or even up to HK$100,000.00 for each tour, and such income was largely derived from commission received as a result of overseas expenditure by tour customers;

(f)   such commission income generated overseas did not have to be reported to the Inland Revenue Department (“IRD”), so the tax returns of long haul tour guides would generally reflect income from their travel agencies earned locally, which on average would be several thousand to HK$20,000.00 per month;

(g) the income of long haul tour guides largely comprised of Shop Commission as a result of purchases by tour customers of watches, jewellery, carpets and dried seafood, which could generate commission of several ten thousand to a hundred odd thousand dollars per tour, and each show/performance, specialty meal and optional activity would generate commission respectively of (i) HK$500.00 to HK$600.00, (ii) HK$300.00 to HK$900.00 and (iii) HK$200.00 to HK$300.00 per person.

20.  Mr Tong’s witness statement dated 2 June 2010 states inter alia as follows:

(a) he became a tour guide since 1994 working for Wing On (1994-2001), Sunflower Travel (3 months in 2002), Globair (6 months in 2006), and thereafter becoming a freelance tour guide;

(b) since June 2008, he became the chairman of the association of tour co-ordinators;

(c)  several years after he became a tour guide he started to escort long haul tours and his average monthly income was HK$80,000.00 to HK$100,000.00, which mostly comprised overseas commission from tour customers;

(d) at that time he was working as a freelance tour guide for about 3 months each year escorting 7-8 long haul tours, and his average monthly income was about HK$70,000.00;

(e)  commission income of long haul tour guides was higher than that of short haul tour guides who would earn about HK$10,000.00 to HK$20,000.00 odd per month;

(f)   he says that tour guide work was interesting but demanding, and tour guides who had Form 5 education and spoke some English could take up long haul tour guide work and be promoted to become long haul tour guides in any travel agency with a promotion structure;

(g) long haul tour guides could normally work until about 60 years.

III. Mr Liu’s supplemental witness statement

21.  Mr Liu’s supplemental witness statement dated 19 November 2010 reiterates the matters described in paragraph 8 above.  He corrects the error in his witness statement, ie his basic salary and commission whilst employed by Miramar were HK$7,235.00 and HK$1,200.00 respectively and not HK$13,740.00 and HK$1,200.00.  The latter reflects his earnings at Hong Tai.  He reiterates that his income as a tourist guide working for Hong Tai and Miramar comprised of the 6 heads specified in paragraph 7 above.

22.  As regards the head of income described in paragraph 7(b) above, the calculation of the basic service fee depended on the duration of the tour and the number of tour customers, eg on a 6-day tour each tour customer would pay service fee of HK$200.00 per day of which HK$132.30 would go to the tour guide and HK$68.70 to Hong Tai.  As regards the income described in paragraph 7(d)-(f) above, there were guidelines for determining the Shop, Activity and Souvenir Commission, ie (a) usually 5% of the purchase price for tours to Japan and Kunming in Mainland China etc and 3% of the purchase price for tours to Singapore-Malaysia-Thailand and Korea etc for the Shop Commission, (b) about 3%-5% of the purchase price for the Souvenir Commission, and (c) a specified rate for the Activity Commission.

23.  Mr Liu explains that upon completion of each tour the tour guide must complete a tour report setting out the names of the designated shops and types of optional activities with number of participating tour customers to facilitate calculation of the commission.  He believes the travel agency would also independently obtain information from the overseas shops or organisers.  In this respect, Mr Liu retained a copy of the summary of his escorted tours for 2006/2007.

24.  Mr Liu is aware that tour itinerary, service fee and other charges required the pre-approval and the supervision of Travel Industry Council of Hong Kong, which required all tour guides to prepare a tour report after completion of each tour to facilitate investigation in case of complaint or other emergency.  Since Hong Tai was ISO-qualified and had good document trail, it was easier for Mr Liu to collate the relevant documents for adducing at trial.  But Miramar should have similar documents, which he had had sighted but had not kept copies.

25.  Mr Liu says that when he worked for Miramar, he had to pre-pay the service fee referred to in paragraph 7(b) above based on the number of tour customers and the duration of the tour, and Miramar would issue receipt for such pre-payment.

IV.  Mr Cheung’s supplemental witness statement

26.  Mr Liu applies for leave to serve Mr Cheung’s supplemental witness statement.  In such supplemental witness statement, Mr Cheung confirms he was still working for Hong Tai and was responsible for escorting South-east Asia and China short haul tours.  He produces a schedule of his monthly income for 2009/2010 with breakdown of the amounts for each of the 6 heads of income referred to in paragraph 7 above.

27.  Mr Cheung gives similar descriptions of earnings as stated in paragraphs 22-23 above.  He states that additional tips given by tour customers varied from HK$500.00 to HK$1,000.00 for each tour.  In the past 12 months, Mr Cheung escorted 26 South-east Asia tours, and his average monthly income (including overseas income) was about HK$19,000.00.

28.  Mr Cheung explains he did not apply to become a long haul tour guide because his English proficiency was not satisfactory.  But he knew a number of long haul tour guides and their monthly earnings in 2010 could be maintained at about HK$70,000.00 to HK$80,000.00.  He believes that because of the increase in the number of PRC nationals going on shopping tours to Europe and America from Hong Kong, more tour customers joined Hong Tai’s long haul tours in 2010.

29.  Mr Cheung confirms the documents annexed to Mr Liu’s supplemental witness statement were Hong Tai’s documents.

V. Mr Wong’s witness statement

30.  Mr Liu applies for leave to serve Mr Wong’s witness statement.  In his witness statement, Mr Wong confirms that since 2000 he worked as a freelance tour guide escorting overseas tours (mostly long haul tours) for various travel agencies.  He would escort 15 tours each year with 10-25 tour customers for each tour.  His income largely comprised of the 5 heads of income in paragraphs 7(b)-(f) above.

31.  The basic service fee specified by each travel agency was €$12.00 per person for Europe tour and US$12.00 per person for North America tour.  As for additional tips from tour customers, it would be about HK$100.00 to HK$150.00 per tour customer.

32.  The Shop Commission given by shops in Europe and North America is 10% of the purchase price.  The Souvenir Commission was less at a few percent of the purchase price.  The overseas organiser would give the tour guide about 50% of the entrance fee as Activity Commission.  The designated shops and optional activities were pre-arranged by the travel agencies, who might also receive commission from such shops and organisers (but Mr Wong was unclear about the amount of such commission).  Since the travel agencies could also claim commission, he had to submit details of purchases made by tour customers and optional activities they participated to the travel agencies.

33.  Tour customers on long haul tours (especially to Western Europe) would make many purchases, and there was continuous increase of tour customers on long haul tours leaving from Hong Kong or Mainland China to Western Europe for purchase of brand watches, handbags and fashion, so each Western Europe tour could generate several hundred thousand dollars of purchases and the commission for tour guides could be as high as hundred odd thousand dollars.  Mr Wong says that in August 2010 he escorted an 8-day tour from Shanghai to Western Europe and he earned Shop and Activity Commission of HK$230,000.00.  Thus, a long haul tour guide who could speak average English and putonghua could earn on average HK$60,000.00 to HK$100,000.00 per month in the booming Mainland China and Hong Kong tourism industry.

34.  Mr Wong explains the qualities and work of a tour guide, which job was physically demanding.  A tour guide must be agile and alert with good walking ability to look after tour customers, be able to move around carrying heavy luggage, and be able to work overnight.  He must also have good memory, be patient and friendly, and must ensure that cash entrusted to him for entrance fees, meals and commission would be kept in safe custody.

35.  Mr Wong says that after gaining a few years of experience many long haul tour guides working for travel agencies would become freelance operators so they could work flexibly for different travel agencies to earn more income and to escort tour at times that suited them.

VI. Legal principles

36.  Very little needs to be said about the legal principles because they are trite.  The plaintiff being the claimant normally has the legal burden of proof in establishing his claim, and in discharging such burden of proof the plaintiff will be entitled to adduce factual and, where appropriate, expert evidence as appropriate.  Such factual evidence includes both viva voce evidence from witnesses called at trial and also documentary evidence.

37.  There is no doubt that a litigant can decide what witnesses should be called, but such freedom is not without limit.  For example, the witness evidence must be admissible evidence relevant to the disputed issues.  Secondly, the witness evidence should not be unnecessarily excessive and prolix.  Order 35 rule 3A(1)(b) of the Rules of the High Court (“RHC”), which has not been referred to either by Ms Chih, counsel for Mr Liu, or Ms Wong, solicitor for the 2^nd Defendant, allows the court at any time before or during a trial to limit the number of witnesses that a party may call on a particular issue.  This rule requires the party concerned to avoid spending excessive costs and time adducing evidence on the issues.  But such case management power is to be exercised having due regard to the parties’ entitlement to receive a fair trial and to have a reasonable opportunity to lead evidence in support of his contentions (see Order 35 rule 3A(2)(b)-(c) of the RHC and Hong Kong Civil Procedure 2012 Vol.1 paras.35/3A/1 and 38/1/8 at pp.728 and 748).

38.  Order 38 of the RHC which is concerned with the exchange of witness statements is ancillary to the above principles.  It empowers the High Court to direct any party at any stage of the proceedings to serve on the other parties written statements of the oral evidence which that party intends to lead on any issues of fact to be decided at the trial.  The exercise of such power is for the purpose of disposing fairly and expeditiously of the cause or matter before it and saving costs, having regard to all the circumstances of the case, including (but not limited to) (a) the extent to which the facts are in dispute or have been admitted , (b) the extent to which the issues of fact are defined by the pleadings, and (c) the extent to which information has been or is likely to be provided by further and better particulars, answers to interrogatories or otherwise (see Order 38 rule 2A(1) of the RHC).

39.  As regards the contents of witness statements, it must be remembered that they are for use at trial and therefore must relate to issues of fact at trial.  It is important that the written statement served must be full and complete since the party serving the witness statement may not lead evidence from such witness at trial, the substance of which is not included in the statement served, unless the court has given leave for the witness orally to (a) amplify his witness statement or (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other party (see Order 38 rule 2A(7)(b) of the RHC).  The court may grant such leave only if it considers that there is a good reason not to confine the evidence of the witness to the contents of his witness statement (see order 38 rule 2A(7A) of the RHC).

40.  Ms Wong relies on the following passage in Hong Kong Civil Procedure 2012 Vol.1 para.38/2A/6 at p.757:

“Accordingly, the written statement of such a witness must contain only such material facts as the witness is able to prove of his own knowledge ……

Again, like the oral evidence of the trial witness, his written statement must not contain any inadmissible evidence (para.(8)). It must not contain any statement of information or belief even if the grounds or reasons thereof are given. ……

Like the oral evidence of the trial witness, a written statement must not contain any expressions of opinion, but be confined to matters of fact. ……’

41.  However, I am not persuaded that a witness statement cannot contain hearsay information.  Order 38 rule 2A(9) of the RHC provides that “[where] any statement served is one to which the Evidence Ordinance (Cap.8) relates, paragraphs (6) and (7) shall take effect subject to the provisions of that Ordinance and Parts III and IV of this Order.  The service of a witness statement under this rule shall not, unless expressly so stated by the party serving the same, be treated as a notice under that Ordinance; and where a statement or any part thereof would be admissible in evidence by virtue only of that Ordinance, the appropriate notice under Part III or IV of this Order shall be served with the statement notwithstanding any provisions in those Parts as to the time for serving such a notice”.  Thus, if the provision in section 47A of the Evidence Ordinance Cap.8 is applicable to a witness statement, then the appropriate notice must accompany the service of the statement (see Hong Kong Civil Procedure 2012 Vol.1 para.38/2A/3 at p.756 at item (10)).

42.  There is again no doubt that the court has power, if it thinks fit, to direct that supplemental witness statement of a witness be served.  It has been suggested in Hong Kong Civil Procedure 2012 Vol.1 para.38/2A/10 at p.758 that “[the] better practice is that the evidence dealing with or contradicting any statements made by witnesses of the opposite party should be given orally rather than be dealt with by a supplementary statement”, but “[a] supplementary statement may be allowed to be served to give the witness of a party the chance to fill in gaps in his own statement or to answer the statement of the opposite party.  The court may also consider that justice in a case requires that a witness be allowed to file and serve a supplemental witness statement in order to correct an error (in the witness’s original statement) which was not the result of his mistake but that of a third party ……”

43.  With the above principles in mind, I turn to Mr Cheung’s supplemental witness statement and Mr Wong’s witness statement.

VII. Discussion

44.  In the Statement of Damages, Mr Liu claims damages for pre-trial loss of earnings, future loss of earnings and loss of earning capacity.  In Lai Jianxing v Sakoma (HK) Limited & ors HCPI 757/2009 (unreported, 9 September 2011), Mr Recorder A Ho, SC said “[it] is a well-settled principle that pre-trial loss has to be established as a matter of probability, but calculation of future loss can take possibilities into account: Charlesworth & Percy on Negligence, 12^th edition, para 5-113” (at para.40).

45.  In the present case, as regards pre-trial loss, it is incumbent on Mr Liu to prove on a balance of probabilities that he would have become a long haul tour guide and the timing of such change.  As regards future loss, quantification depends upon future uncertain events, eg whether Mr Liu’s income would have increased during the future years, whether but for the Accident he might have worked as a long haul tour guide, etc.  Future prospects are notoriously difficult to assess, but it is the function of the trial judge to decide whether the available evidence discloses a substantial or significant chance (which could be less than likely) of such event materialising, and if so, such contingency should be taken into account for the purpose of the assessment.

46.  The 2^nd Defendant disputes Mr Liu’s claim for pre-trial and future loss of earnings and loss of earning capacity, and hence Mr Liu is entitled to adduce evidence as to fact along the lines as aforesaid to support his claims.

47.  Ms Wong submits that Mr Liu already has an abundance of witness statements from 5 witnesses, ie Messrs Cheung, Chow, Tong and Choi and Mr Liu himself, on the work and earnings of tour guides.  Mr Liu’s witnesses have worked as short haul, long haul and/or freelance tourist guides, and they can speak from such experience.  Since the removal of the 2^nd Defendant’s objection to Mr Liu’s supplemental witness statement, there is also an available breakdown as to how his pre-Accident income was calculated.  Ms Wong submits that additional and/or supplemental witness statements from Mr Wong and Mr Cheung on the same subject matters are unnecessary, excessive and not cost-effective, and should not be allowed.

48.  On the other hand, Ms Chih submits that Mr Cheung’s supplemental witness statement and Mr Wong’s witness statement are relevant and crucial for Mr Liu to prove his claims for pre-trial and future loss of earnings and loss of earning capacity.

49.  It is Mr Liu’s case as evident from his witness statement and supplemental witness statement that the income of tour guides is not amenable to documentary proof by simple production of their tax returns/assessments since it was unlikely that income generated overseas would be included.  Secondly, the income of tour guides comprised of the 6 heads described in paragraph 7 above, so collation of information and calculation in relation to earnings may be more complicated.  There is therefore an understandable need for witness evidence to explain the composition of income of tour guides.  Thirdly, since Mr Liu was still under probation at Miramar when the Accident happened, there is no direct factual evidence as to the full scope of his work and his earnings as a full-time employed tour guide had he been able to complete his probation, so he has to depend on evidence from other factual witnesses as to the earnings of a full-time employed short haul tourist guide.  Fourthly, in relation to the future years, Mr Liu has alluded to promises allegedly made by Miramar to train him to work as a long haul tourist guide after probation (which is disputed by Miramar), and there is the vexed question of his future work prospects but for the Accident.  Again, witness evidence as to the nature of work and earnings of a long haul tourist guide will be relevant to the disputed issues.

50.  So, on the basis of the aforesaid considerations, I turn to consider whether Mr Cheung’s supplemental witness statement and Mr Wong’s witness statement are necessary for a fair trial of this action or whether they are excessive and prolix.

51.  In respect of Mr Cheung’s supplemental witness statement, Ms Wong submits that his initial witness statement already (a) covers his earnings from 2006 to 2008, (b) exhibits a confirmation letter from the IRD as to his earnings from 1 April 2002 to 31 March 2008, and (c) gives his statement or belief as to the earnings of a long haul tourist guide.  Ms Wong says it is not necessary and/or cost-effective for Mr Liu to serve Mr Cheung’s supplemental witness statement simply to state Mr Cheung’s up-to-date earnings without any documentary support.  If such is permitted, Mr Liu may well in due course seek leave again to serve further supplemental witness statement(s) from Mr Cheung up to trial.  Ms Wong argues such “endless exercise” should not be countenanced.

52.  On the other hand, Ms Chih submits that the update in respect of Mr Cheung’s income as a full-time short haul tourist guide in his supplemental witness statement is relevant and probative.  She argues that the 2^nd Defendant should not criticise Mr Liu for any lack of documentary support in respect of Mr Cheung’s computation of his updated earnings since they did not raise any criticism against Mr Cheung’s assertions in his initial witness statement as to his earnings in the earlier years.  In any event, any lack of documentary support may go to the weight but not the relevancy or admissibility of witness evidence in respect of Mr Cheung’s earnings.  The material disclosed in Yau’s Affirmation is insufficient since Miramar only disclosed blank forms rather than actual earning records of comparable tourist guides notwithstanding their acknowledgment that commission earned by their tour guides comprised Shop and Activity Commission and that there were tour reports/records in existence.

53.  I am of the view that the matters covered in Mr Cheung’s supplemental witness statement are relevant to the disputed issues that require resolution at trial. I note that out of Mr Liu’s factual witnesses Mr Cheung is the only one who worked and still works as a full-time employed short haul tourist guide, ie a position similar to that of Mr Liu just before the Accident happened.  Although Mr Cheung’s supplemental witness statement overlaps with that of Mr Liu in that they both referred to the 6 heads of income of a tourist guide (see paragraph 7 above) as well as the nature of the basic service fee and commission earned whilst working at Hong Tai (see paragraphs 22-23 above), Mr Cheung’s witness evidence have an added evidential value in that it confirms that updated earnings of an employed short haul tourist guide are calculated by the same methodology, something which the Plaintiff cannot say from his own knowledge since he no longer worked as a tourist guide after the Accident.  Ms Wong’s criticism that Mr Cheung’s updated earnings backed by his own breakdown but not by any objective documentary support is an attack on the weight rather than admissibility of the evidence, and as such does not carry great weight at this stage particularly when the 2^nd Defendant has not raised similar objection to Mr Cheung’s assertions in his earlier witness statement as to his previous earnings as a full-time short haul tourist guide employed by Hong Tai.

54.  Bearing in mind that Mr Liu has already put forward Mr Cheung as his witness, I am persuaded that Mr Liu may well be able to seek leave under Order 38 rule 2A(7)(b) of the RHC to lead evidence at trial from Mr Cheung on the matters canvassed in his supplemental witness statement.  After all, damages are assessed down to trial and the level of earnings of a comparable worker may change over time.  The question here is whether Mr Liu should wait until trial to seek leave to lead such evidence from Mr Cheung or whether he be allowed to serve Mr Cheung’s supplemental witness statement.

55.  An important function of a supplemental witness statement is to give notice to the opposite party so as to eliminate the element of surprise before or at trial as to the substance of the witness’ evidence.  The “cards on the table” approach is more important in the present case because Mr Liu has yet to serve the Revised Statement of Damages.  It may draw unnecessary criticism if Mr Liu in due course pleads his case on loss of earnings in the Revised Statement of Damages based on information as to Mr Cheung’s updated earnings, which is known to Mr Liu and which he intends to adduce evidence at trial but is not disclosed by way of any supplemental witness statement of Mr Cheung.  This may also cause difficulty for the 2^nd Defendant in pleading an adequate response in their Answer.  It is for this reason that in personal injury cases PI Masters may give case management directions for the plaintiff to file and serve the Revised Statement of Damages and at the same time serve any further statements as to quantum and any further documentary support not already disclosed.

56.  Ms Wong raises the spectre of endless rounds of witness statements.  I am not persuaded that permission for Mr Liu to serve Mr Cheung’s supplemental witness statement will open any floodgate.  In every case, the court will carefully scrutinise the need for supplemental witness statement in light of the principles discussed above, and experience says not many cases require supplemental witness statements.  But where there is a true need, I see no reason why the court should not entertain applications for service of supplemental witness statements.  For example, if a plaintiff has found work or if he suffers any substantial deterioration, it will be unfair not to allow the plaintiff to put forward its altered case or to put the opposite party on notice by way of supplemental witness statement.

57.  As regards Mr Wong’s witness statement, Ms Wong suggests that Mr Wong’s work and earnings as a freelance long haul tourist guide are irrelevant comparables, and points out that Mr Wong is unable to give evidence as to the earnings of full-time employed long haul tourist guide.  Ms Wong also says there is little point in Mr Wong repeating the qualities and work of a long haul tourist guide since Mr Liu has other available witnesses who will give evidence on these matters.

58.  It is true that Mr Liu has not specifically stated in his witness statement or supplemental witness statement that he planned to be a freelance long haul tourist guide.  But I bear in mind that on his case he was not yet a long haul tourist guide when the Accident happened but was merely on the brink of becoming one.  He cannot be criticised (at least not at the present interlocutory stage of the proceedings) for not having thought comprehensively about his long-term career development.

59.  But is that a sufficient reason to shut out Mr Wong’s witness statement?  In respect of the claim for loss of future earnings, the court has to consider what work Mr Liu could have undertaken in the future years but for the Accident.  If there is a position which Mr Liu might probably have taken up but for the Accident in light of available factual matrix, including his abilities, the market, the job demands, his inclination, etc, then, in my view, evidence in respect of such job and the corresponding earnings may well be relevant.  At this stage, I cannot say that but for the Accident a full-time freelance long haul tourist guide is so unlikely a future job for Mr Liu that evidence in relation thereto ought to be excluded with resulting rejection of Mr Wong’s witness statement.  I agree that in many personal injury cases  potential future jobs but for the accident can be easily established by applying a good dose of common sense to the factual matrix, and the corresponding earnings can be proved by, say, government statistics.  But in the particular circumstances of the present case, the intricacies of computation of the earnings of a freelance long haul tourist guide are, in my view, deserving of a witness statement from Mr Wong, who is the only one who has current experience as a full-time freelance long haul tourist guide whilst both Mr Tong and Mr Chow are part-time long haul tourist guides.

60.  In all the circumstances, I grant leave for Mr Liu to serve on the 2^nd Defendant Mr Cheung’s supplemental witness statement and Mr Wong’s witness statement both dated 19 November 2010 within 7 days.

VIII. Case management

61.  Following the above decision, I also grant the following case management directions:

(a) leave to the 2^nd Defendant to serve witness statement(s) in reply to Mr Liu’s and Mr Cheung’s supplemental witness statements and Mr Wong’s witness statement all dated 19 November 2010 (if so advised) within 42 days from today, ie on or before 26 January 2012, and each of such witness statement(s) (if any) shall be accompanied by its statement of truth;

(b) there be extension of time until 28 days thereafter, ie on or before 23 February 2012, for the Plaintiff to comply with paragraph 16 of the Amended Order to file and serve Revised Statement of Damages and to serve any further documentary support as to quantum not already disclosed, and such Revised Statement of Damages shall be accompanied by its statement of truth;

(c)  leave for the Plaintiff to serve any further statements as to quantum under paragraph 16 of the Amended Order be set aside;

(d) there be extension of time until 28 days thereafter, ie on or before 22 March 2012, for the 2^nd Defendant to comply with paragraph 17 of the Amended Order to file and serve their Answer to the Revised Statement of Damages, and such Answer shall be accompanied by its statement of truth;

(e)  there be extension  of time until 28 days thereafter, ie on or before 19 April 2012, for the parties to comply with paragraph 18 of the Amended Order to agree the contents of the trial bundle;

(f)   there be extension of time until 7 days thereafter, ie on or before 26 April 2012, for the parties to comply with paragraph 18 of the Amended Order to submit the copy index or indices of the trial bundle to the PI Master for record purpose;

(g) save as aforesaid, paragraph 18 of the Amended Order do stand;

(h) there be extension of time until 26 April 2012 for the parties to comply with paragraph 19 of the Amended Order (i) to seek counsel’s advice on liability evidence and quantum and (ii) to seek all outstanding interlocutory applications as advised by counsel or handling solicitor of the case;

(i)   Checklist Review is adjourned to 21 May 2012 at 12:00 noon am for leave to set down for trial;

(j)   save as aforesaid, paragraph 20 of the Amended Order do stand;

(k) parties do on or before 15 March 2012 jointly write to the PI Master to report on progress as to mediation, including but not limited to (i) whether any Mediation Notice, any Mediation Response and/or any Mediation Minute have been filed/served, (ii) whether any attempt has been made to resolve any difference over mediation proposal between the parties whether in any Mediation Notice and any Mediation Response or otherwise, including any application under paragraph 41 of PD18.1, (iii) whether any arrangements have been made for any mediation attempt, and (iv) if so, whether any date has been scheduled for any such mediation attempt;

(l)   paragraph 22 of the Amended Order do stand;

(m)   parties do jointly report in writing to PI Master on results of mediation (if any) by completing and returning Report on Mediation within 14 days of completion or abandonment of mediation;

(n) PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met with detailed reasons;

(o) time shall run during court vacation;

(p) liberty to apply.

IX. Costs

62.  Shortly before the hearing, the 2^nd Defendant decided not to contest Mr Liu’s application for leave to serve Mr Liu’s supplemental witness statement.  Ms Chih asks for costs of such application to be borne by the 2^nd Defendant in any event.  Ms Wong suggests that costs of and occasioned by Mr Liu’s application for leave to adduce his own supplemental witness statement be to the 2^nd Defendant in any event and costs of Mr Liu’s supplemental witness statement and any witness statement in reply to be served by the 2^nd Defendant be costs in the cause of the assessment of damages.

63.  In respect of Mr Liu’s supplemental witness statement, I am of the view that the information therein is largely within his knowledge and could have been included in his original witness statement.  There is no reason why the Plaintiff should not bear the costs of the application for leave to serve his own supplemental witness statement had there been no opposition to the application.  But the 2^nd Defendant should not have resisted such application.  In abandoning their opposition only on the eve of the hearing before me, I see no reason why the 2^nd Defendant should not bear the cost of such resistence.

64.  As regards Mr Cheung’s supplemental witness statement and Mr Wong’s witness evidence, they cover matters arising after the last round of witness statements, and the Plaintiff should not bear costs of the application in respect of these statements.

65.  In the circumstances, I grant a costs order nisi that:

(a) Mr Liu do pay the 2^nd Defendant costs of Mr Liu’s application for leave to serve his own supplemental witness statement being equivalent to the costs of (i) perusal of the Summons and supporting affidavit in respect of such application and (ii) preparation of a consent summons acceding to such application in any event to be taxed if not agreed;

(b) costs of Mr Liu’s application for leave to serve Mr Cheung’s supplemental witness statement and Mr Wong’s witness statement be costs in the cause of the assessment of damages;

(c)  costs of the Mr Liu’s and Mr Cheung’s supplemental witness statements, Mr Wong’s witness statement and any witness statement in reply to be served by the 2^nd Defendant be costs in the cause of the assessment of damages;

(d) subject to (a)-(c) above, the 2^nd Defendant do pay Mr Liu’s costs of the Summons in any event to be taxed if not agreed.

66.  There be certificate for counsel in respect of the costs order nisi in paragraph 65(b) and (d) above.  To assist the taxing master, whilst I consider the matter fit for counsel, it is not of such complexity that counsel of any serious seniority is required and notional counsel of 6 years’ call would have sufficed.

Representation: