WONG KIN v. HIM KEE FOOD DISTRIBUTION CO LTD

DCEC 1771/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1771 OF 2012

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D E C I S I O N

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1. This is the applicant’s application for amendment to the application by adding an alternative claim, namely, that the respondent should be liable to pay employees’ compensation since the respondent was a principal contractor within the meaning of the Employees’ Compensation Ordinance.

2. The application commenced on 12 October 2012 and the accident was alleged to occur on 20 September 2011.  In the application, the applicant alleged that the respondent was his employer.

3. The respondent opposed the application.  The first ground is on merit.  The respondent submits that there is no merit in the amended case because the applicant had repeatedly alleged the respondent to be his direct employer and denied being employed by Futer/Ling.  Without being employed by Futer/Ling, the applicant will not be able to establish any liability against the respondent as the principal contractor.  This is so even though Futer/Ling was the subcontractor of the respondent.  This is a matter of evidence.

4. Even if the respondent is correct that since the applicant did not sue Futer/Ling, he will fail in his claim.  Now that is another matter.  What I am concerned is the information upon which the application for the amendment is made.  From the witness statement of Mr Cheng Wai-biu, it is evident that he made the allegation that Futer was an independent contractor of the respondent and the applicant was apparently the employee of Futer (in Chinese 富達).  The applicant is entitled to make the amended claim to include the respondent as the principal contractor because Futer is the subcontractor and the applicant was apparently the employee of Futer (富達).  It would be wrong not to include the alternative claim.

5. The second ground of objection is impermissible alternative claim.  Obviously, the applicant has reasonable grounds to include a claim against the respondent as the principal contractor because it was, according to the witness statement of Mr Cheng Wai‑biu, the principal contractor of Futer which apparently employed the applicant as the employee.  The respondent’s respondent submits that the pleading of fact is inconsistent.  I do not agree, because the source of fact does not come from the applicant alone; it also comes from the respondent’s witness, Mr Cheng Wai-biu.  It cannot be said to be inconsistent because they come from two sources to support the alternative claim.

6. The third ground of objection is delay.  The applicant came to be aware of the alleged relationship between Futer and the respondent some time in March.  He was granted Legal Aid and he was assigned counsel some time in August.  Obviously, the application was made pursuant to counsel’s advice.  There was some delay but the paramount consideration in this court is to adjudicate on the merits of the case. 

7. The applicant’s counsel submits that the present application was to enable the court to adjudicate on the issue brought in by the respondent.  This is because the respondent’s witness, Mr Cheng, has made a witness statement to say that the respondent was not the employer of the applicant but it was a principal contractor which subcontracted the delivery business to Futer who apparently employed the applicant.  Now, that was the defence and of course if it turned out to be true that the information contained in the witness statement of Mr Chan came to be accepted by the court, then of course it will be a good defence for the respondent to get rid of any liability because he was not the employer of the applicant but the principal contractor, but then he will not be liable to the applicant because he was suing in that capacity.

8. The present application is to enable the court to adjudicate on this issue and at the end of the day if the information contained in Mr Chan’s witness statement is accepted by the court then of course the applicant would not at that time have left out this issue to be decided in favour of the applicant in terms of compensation payable.  If this issue is left out, then it would be unjust to the applicant. 

9. The respondent also submits that it has to serve notice on Futer if the court grants the application and then there may be the situation that the hearing day will have to be vacated.  So be it.  What is important is the merit of the case.  If it is the fault of the applicant to bring in the application so late that the trial date is vacated, it may be that there may be cost implication on the part of the applicant but it is not a matter which this court has to decide at this stage.  The court simply cannot say that because the respondent may have to serve notice on Futer and this may cause delay or the trial date to be vacated then the application should not be granted.  That cannot be right.

10. The last ground of objection is the underlying objectives.  The respondent submits that the applicant has a very bad case against the respondent because of various inconsistencies in its version.  That simply would be a matter of evidence to be weighed by the trial Judge, it should not be considered at this stage.  That ground cannot succeed.

11. I rule against the objections raised by the respondent and allow the application for amendment. 

(Discussion re costs)

12. The applicant make this amendment application so the costs occasioned by and incidental to this application be to the respondent, to be taxed, if not agreed.

13. The respondent failed in opposing the application.  So the costs of the hearing on 11 September 2013 and costs of today’s hearing be to the applicant, to be taxed, if not agreed, with certificate for counsel.

14. The applicant’s own costs to be taxed in accordance with Legal Aid regulations.

15. I also make an order in terms of paragraph 2; the service of the amended application be dispensed with.