MA MAN HUNG v. HUNG SHING WAI AND ANOTHER

DCEC 137/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 137 OF 2013

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DECISION

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Introduction

1.  This is an application of Hung Shing Wai (“Hung”) by his summons dated 27 November 2013 (“the Summons”) to strike out the present application in these proceedings commenced by Ma Man Hung (“Ma”) against him on the ground that it is scandalous, frivolous and vexatious or otherwise an abuse of the process of the court.

2.  Hung took out another summons dated 6 February 2014 to apply for filing his 3^rd affirmation for the purpose of this Summons. Absent opposition, leave was granted with costs being in the cause of this Summons.

3.  In these proceedings, Ma seeks compensation for his injuries sustained after a fall from a temporary platform (“the Accident”) in the course of his work as a construction worker in a construction site located at No.2A Hung Kiu Lane, Kau To Shan, Tai Po, New Territories (“the Site”) on 25 January 2011. In his pleaded case, Ma sues Hung on the basis that Hung was his employer at the material time or alternatively Ma was employed by Chow Wan Yin (“Chow”) trading as Chase Decoration & Design Co. (“CDDC”), a sub-contractor of Hung, or vice versa.

4.  The major grounds relied upon by Hung is that Chow has already by way of a Notice of Admission of Liability dated 5 September 2013 (“the Notice”) accepted that he was the employer of Ma and hence his liability to Ma. Further, Hung says that Ma’s evidence against him is thin and tenuous.  

5.  There is no dispute about the applicable general principles. The parties agree that Hung has to show that it is plain and obvious that this Application should be struck out for lack of merits. There should be no trial on affidavit and disputed facts should be taken in favour of Ma whose Application is sought to be struck out. The mere fact that the Application is weak and not likely to succeed is no ground for striking it out.

Hung’s contentions and evidence

6.  Mr Hon, counsel for Hung, first complains that Ma makes inconsistent alternatives without reasonable grounds for so doing and hence in contravention of Order 18 rule 12A, Rules of the District Court. Whilst Ma claims Hung to be his employer, in the same breath he alleges Hung to be the principal contractor (or the sub-contractor) of Chow, his employer.

7.  Mr Hon submits that an employment relationship is contractual in nature and must be premised on parties’ common intention. Ma could not have different intentions as to the identity of his actual employer.

8.  Mr Hon further relies on the following matters to show that Hung, as pleaded in his Answer, had personally no legal relationship with the Applicant and/or Chow whatsoever and hence the Application against Hung is bound to fail.

9.  Foson Investment Limited (“Foson”) was and is the registered owner of the property comprising a four-storey building, a tennis court, a swimming pool and a garden at the Site. According to the record filed at the Companies Registry, a BVI company known as Beauty Look Enterprises Ltd is the sole beneficial owner of Foson though Hung avers that Foson is beneficially owned by his father (“Hung Senior”). There is no direct evidence about the relationship between Hung Senior and the BVI company.

10.  Hung produced a document of CDDC entitled「報價單」(“Quotation”) dated 28 August 2010. It was addressed to one Mr Hung (Hung says it was Hung Senior) in respect of a construction project consisting of twenty items (“the Project”) to be undertaken at the Site and the quoted fee was in excess of HK$1 million. Chow signed on behalf of CDDC and Hung Senior counter-signed on behalf of Foson to approve the Quotation. This is the only documentary evidence of the relationship between Foson and Chow.

11.  Hung claims that he was appointed by Foson to handle the Project at the Site and acted as its agent throughout. He claims that Foson also engaged a firm of designers for the Project and Chow and CCDC were to execute the designed works. The Project was completed in March or April 2011.

12.  Lastly, as stated above, Hung relies on the Notice and contends that given Chow’s admission of Hung’s employment with him, this is an open and shut case that the Application is doomed to failure as against Hung personally.

Ma’s contentions and evidence

13.  Ma was a 53-year-old construction worker at the time of the Accident. His claim against Hung is based on the following matters.

14.  Ma was not aware of the Quotation. He just knew that Chow was all along known to him as a foreman of Hung and Chow called Hung as his boss. Chow indeed once introduced Hung to Ma at the Site as the boss. Chow told Ma that his daily wage was HK$1,000 and often complained to Ma that he had to work for Hung owing to his indebtedness to Hung.

15.  Ma also saw Hung handing over money to Chow as wages to be paid to the workers including him at the Site.  

16.  In regard to a handwritten list of employees of Chow allegedly found by Hung at the Site, Ma rightly points out that his name was not included in the said list. Ma’s current solicitors, Messrs Yu Sun Yau Mak & Lawyers (“YSYML”) in their letter dated 7 June 2013 duly raised this matter with Messrs Sidney Lee & Co, Hung’s solicitors and thus far there has been no reply.

17.  In his reply affirmation, Hung agrees that Chow sometimes addressed him as the boss“老細”at the Site as Hung Senior had long engaged CCDC. He also accepts that he from time to time gave Chow cash on behalf of Foson but he does not explain anything further about such payments. He claims he did not know how Chow dealt with such cash payments received from him.

18.  Lastly Hung denies that Chow’s daily wage was HK$1,000 and that Chow was ever indebted to him and/or Foson.    

Analysis

19.  Applying the established principles to the present application, I am far from persuaded that it is plain and obvious that Ma’s pleaded case against Hung is bound to fail.

20.  If this court accepts all of Ma’s assertions and resolves all the factual disputes in his favour, his claim against Hung cannot possibly be said to be hopeless. This is so despite the Notice and the Quotation, which cannot be conclusive evidence of the legal relationship among Ma, Chow and Hung or the lack of it between Ma and Hung. Ma is entitled to refuse to take the matters in the these documents at face value.

21.  I also bear in mind various unsatisfactory aspects of Ma’s evidence against Hung cogently pointed out by Mr Hon. I agree that there is a credibility issue too but it has to be resolved at trial and not on affidavits.

22.  On the other hand, it is clear to me that the parties have not made proper discovery up to this stage. Far too few documentary evidence is placed this court. Further documents may shed light on the true legal relationship between Ma and Hung or the lack of it. Further investigation into what exactly Hung did in respect of the Project on and off the Site is necessary and based on such factual findings, the court has to determine his legal relationship vis-à-vis Ma.

23.  I bear in mind that I should refrain from being speculative. Nor should I be over-zealous to make suggestions to improve Ma’s case against Hung. I just do not think it is right to deny Ma his day in court with respect to his claim against Hung at this early stage.

24.  Lastly, I cannot agree with Mr Hon’s criticism about Ma’s allegedly conflicting contractual intentions. It is unrealistic to expect Ma as a construction worker to have specific intention to contract with a particular person/company as his/its employee at the Site. Ma’s major concern should be that he would get paid for his manual labour. It is perfectly understandable if it might not cross his mind as to who in law his actual employer was when he started working at the Site. In the circumstances, I do not find it unreasonable for Ma to make inconsistent alternatives in the Application.

25.  Since I have come to the firm view that this is not an appropriate case for striking out, I should not say anything further about the merit of the Application, which should be adjudicated in the conventional manner.

Conclusion and Orders

26.  In light of my analysis, I dismiss the Summons with costs to Ma accordingly. Ma’s own costs is to be taxed in accordance with the Legal Aid Regulations. This is a costs order nisi and is subject to the parties’ application to vary within 14 days.  

27.  YSYML only lodged their 17-page skeleton submissions with a list of authorities only at noon on 7 February 2014, shortly before this application scheduled to be heard at 2:30 p.m.. This caused undue hardship to both Mr Hon and me. Neither Mr Hon, very sensibly, nor this court wanted an adjournment, which would only escalate costs.

28.  This is a clear breach of the Practice Directions and the explanation for the breach proffered by Mr Sun appearing for Hung is forgettable and not worth a mention here. This court could not help showing strong disapproval to his violation of the Practice Directions. I made it clear to Mr Sun that this court was entitled to impose costs penalty on Hung irrespective of whether or not the breach had resulted in any adjournment of the hearing or any other forms of wastage of time or costs pursuant to paragraph 30 of Part D of Practice Directions 5.4.

29.  I was indeed very close to marking my disapproval by an imposition of costs penalty on Hung/ YSYML but finally decided against doing so. Nevertheless, this court wants to make it clear that the relevant provisions in the Practice Directions are to ensure fairness and effective dispute resolution. Any breach of such provisions without sound explanations will certainly attract sanctions by this court.