HUSSIN TAYYIB v. CHAN KAI CHIN t/a CHIN YIU ENGINEERING CO. AND ANOTHER

DCEC 543/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 543 OF 2013

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REASONS FOR DECISION

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1.  This is a Summons taken out by the applicant under "O 3 r5 /O 42" (quote) of the Rules of the District Court. In essence, the applicant applies for an Unless Order requiring the two respondents to file and serve their Answer to the applicant's Interrogatories, otherwise the Witness Statement of Mohammad Zubair be struck out. No affirmation is filed by the parties.

Background

2.  The underlying disputes of the parties arose out of an alleged accident occurred on 31 December 2012.

3.  The applicant claimed for employee compensation.  The applicant alleged that he was an employee of the 1^st respondent and that the 2^nd respondent was the main contractor at the material times.  The applicant alleged that he sustained personal injury in an accident in the course of or arising out of his employment with the 1^st respondent.  The applicant stated that his daily wages preceding the alleged accident was HK$600 per day.

4.  The 1^st and 2^nd respondents filed a joint Answer to the applicant's Application under the Employee Compensation claim.  In their Answer, the respondents admitted that the applicant was an employee of the 1^st respondent and that the 2^nd respondent was the main contractor at the material times.

5.  The respondents, however, denied that the applicant had any accident on 31 December 2012 as alleged.  They further denied that the applicant's alleged injuries were caused by any accident arising out of or in the course of his employment with the 1^st respondent on 31 December 2012 or otherwise.  The respondents averred that the applicant did not meet any accident on 31 December 2012.  The respondents stated that the applicant's daily wages preceding the alleged accident was HK$550 per day.

6.  The abovementioned matters are the main disputes between the parties in the present employee compensation case.

The present summons

7.  On 24 February 2014, the applicant filed the present Summons under O 42 RDC.  On the same day, the applicant also filed a document entitled Interrogatories marked "Served pursuant to O 26 r1 DHC [sic]" (quote).

8.  Mr Mak for the applicant confirmed that it was an application made under O 42 RDC and no affirmation was filed in support of the applicant's Summons. 

9.  Before the present Summons was taken out, the Court had not made any order requiring the respondents to answer any interrogatories.  The applicant had not shown any special circumstances why an Unless Order has to be made by the Court upon the first time the applicant purported to make an application for interrogatories.

10.  Mr Mak only said that the applicant had served a Request for Further and Better Particulars of the Witness Statement of Mr Zubair on the respondents.  Yet, the respondents had ignored it.  The applicant had not taken out any summons to compel the respondents to answer the said Request.

11.  By the present application, the applicant is not asking for the Court's leave to serve the interrogatories under O 26, r1(2) RDC.  The applicant assumes or treats that leave has already been granted to him by the Court, he is simply trying to compel the respondents to answer the Interrogatories within 28 days by an Unless Order.

12.  There is no proper basis for the Court to make an Unless Order in this case.  The applicant's application for an Unless Order must be dismissed, even if the applicant's Interrogatories are properly administered.

Amendment

13.  At the hearing, after it was pointed out by the Court that the applicant had yet been granted leave to serve any interrogatories on the respondents, Mr Mak for the applicant asked for leave to amend the present Summons by adding a fresh request that:-

“leave to be granted to the Applicant to serve the Interrogatories on the Respondents”.

14.  Miss Cheng for the respondents had no objection.

15.  Leave was granted by the Court to the applicant to amend his Summons accordingly.

16.  Turning to the merit of the application for leave to serve interrogatories, practitioners are reminded that O 26 of the Rules of District Court are different from the Rules of High Court in that all interrogatories must be served only upon leave being granted.

17.  O 26 r1 of the RDC reads as follows:-

“(1) A party to any cause or matter may apply to the Court for an order-

(a) giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter; and

(b) requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.

(2) An application under this rule shall be made by summons or by notice under Order 25, rule 10 and a copy of the proposed interrogatories shall be served with the summons or notice.

(2A) On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for savings costs; and in deciding whether to give leave the Court shall take into account any offer made by the party to be interrogated to give particulars, make admissions or produce documents relating to any matter in question.

(3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.”

18.  O 26 r3A reads as follows:-

“(3A) Where interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party, a note at the end of the interrogatories shall state which of the interrogatories each party or, as the case may be, an agent or servant is required to answer, and which agent or servant.” (emphasis)

19.  Order 26 rule 3A is a mandatory provision.  Moreover, failure to answer ordered interrogatories may result in a committal as its most serious consequence according to O 26 r6 RDC.  It should also be emphasized that the issues between the applicant and the 1^st respondent and the issues between the applicant and the 2^nd respondent could be different.  Thus, it is highly undesirable for the applicant to require the purported interrogatories to be answered by "the 1^st and 2^nd respondents" generally, without specifying who from each respondent shall answer what interrogatories.

20.  At the hearing, Mr Mak for the applicant said that the applicant actually requested the 1^st respondent and a director of the 2^nd respondent to answer the Interrogatories.  I do not think the mandatory provision of O 26 r3A can be dispensed with in this way.  Further, some of the Interrogatories relate to the personal knowledge of Mr Zubair, it is very hard to see how the Court can possibly ask 1^st respondent or a director of the 2^nd respondent to answer such interrogatories.

21.  Thus, the present interrogatories are technically defective.  The present interrogatories simply stated that "the respondents are required to answer in writing by affidavit or affirmation the following interrogatories under Order 26 rule 1 of the Rules of the District Court".  They do not specify who from the 1^st respondent and who from the 2^nd respondent shall answer the purported interrogatories.

Merit of the Interrogatories

22.  The background leading to the applicant's application for leave to serve interrogatories is as follows.

23.  On about 25 November 2013, the Witness Statement of Mohammad Zubair was filed for the respondents.  According to his witness statement, Mr. Zubair purported to state that he was employed by the 1^st respondent at the material times and he was a co-worker of the applicant.  Among other things, he stated that his wages were HK$550 a day and he worked 23.5 days per month.  He further stated that the applicant was introduced by him to the 1^st respondent and to his knowledge, the applicant was paid in the same manner as he was paid.

24.  Mr Zubair continued to state that on 31 December 2012, he tried to locate the applicant.  Mr Zubair talked to the applicant over the phone.  Mr Zubair was told by the applicant that he had left the construction site due to urgent family matters.  The applicant had not mentioned anything about any accident.

25.  Mr Zubair further stated that 1^st respondent asked him to call the applicant, which he did, but to no avail.

Paragraph 1

26.  Paragraph 1(a) to (c) of the applicant's interrogatories all related to the provision of evidence to substantiate Mr Zubair's allegation, including evidence of his attendance record, evidence of wages and evidence of total number of working days.

27.  Paragraph 1(d) of the interrogatories requires the respondents to state the total numbers of Mr Zubair's working days after November, 2012.

Paragraph 2

28.  Paragraph 2 of the purported interrogatories referred to how Mr Zubair had such knowledge that the applicant was being paid in the same manner as he was paid.

Paragraph 3

29.  By paragraph 3 of the purported interrogatories, the applicant asked the respondents to provide the gist of the conversation between Mr Zubair and the applicant on 31 December 2012.

Paragraph 4

30.  By paragraph 4(a) of the purported interrogatories, the applicant asked for the date and time Mr Zubair was asked by the 1^st respondent to call the applicant after the alleged accident.

31.  By paragraph 4(b) of the purported interrogatories, the applicant asked for the date and time Mr Zubair had called the applicant after the alleged accident; and asked for provision of evidence such as call details.

Paragraph 5

32.  By paragraph 5 (a) to (c) of the purported interrogatories, the applicant asked for the date and place that Mr Zubair received construction site safety training, whether Mr Zubair could speak fluent English and Chinese, and how long Mr Zubair had stayed in Hong Kong with provision of evidence.

33.  Mr Mak conceded that paragraph 5 was not necessary and he applied to withdraw paragraph 5 from the purported Interrogatories.

Legal Principle

34.  Bearing in mind the differences between the rules of Order 26 in the Rules of District Court and Rules of High Court, it is helpful to consider the principles upon which interrogatories may be administered as set out in Lee Nui Foon v Ocean Park Corp (No 2) [1995] 2 HKC 395.

35.  The principles are, among other things:-

(i) interrogatories must relate to "a matter in question" between the parties;

(ii) interrogatories must be "necessary" either for disposing fairly of the cause or matter or for saving costs;

(iii) interrogatories which relate solely to credit are not allowed; and

(iv) interrogatories must not be effectively asking for documents or discovery.

36.  I am of the view that paragraph 1(a) to (c) of the Interrogatories is clearly an attempt to ask for discovery of documents, as opposed to an application for interrogatories.  Paragraph 1(d) thereof is not necessary for disposing fairly of the cause and matters in this case.  The real issues of the present claim are whether the applicant had sustained injury in an accident in the course of employment and arising out of employment on 31 December 2012; and the applicant's daily wages. 

37.  In regards paragraph 2 of the purported interrogatories, it is immaterial how Mr Zubair had such personal knowledge. The real issue here is how much the applicant was paid for each day's work.

38.  Regarding paragraph 3 of the purported interrogatories, it is clear that Mr Zubair had already provided the gist of the conversation between the applicant and him in his witness statement.  It is a waste of costs for the Applicant to ask for the gist of such conversation again.  As conceded by Mr Mak, the applicant will not have any prejudice if these interrogatories are not answered.

39.  As to paragraph 4, these purported interrogatories are relevant to Mr Zubair's credibility at highest.  Mr Mak admitted that these interrogatories were about cross-examination.  The real issues of the present claim are whether the applicant had sustained injury in an accident in the course of employment and arising out of employment on 31December 2012.  Whether Mr Zubair was asked by the 1^st respondent to call the applicant or whether Mr Zubair had called the applicant after 31 December 2012 were all peripheral issues.  They are not necessary for disposing fairly of the cause or matter; or they will not save the parties' costs.

40.  Thus, the purported interrogatories have no merits at all.  The application for leave to serve interrogatories is dismissed.

41.  In conclusion, the present Summons is dismissed.

42.  [Parties made submissions on costs].