NG CHIU WING v. YIP HOI CHING AND ANOTHER

CACV 362/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 362 OF 2008

(ON APPEAL FROM DCEC 434/2008)

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REASONS   FOR  JUDGMENT

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Hon Yeung JA:

1.  I agree with the reasons given by A Cheung J.

Hon A Cheung J:

2.  On 26 June 2009, we allowed this appeal.  These are my reasons.

3.  This was an appeal from the order of Her Honour Judge H C Wong dated 21 November 2008 refusing leave to the applicant to join one莫應倫as a co-respondent to employees’ compensation proceedings DCEC 434/2008.

4.  The applicant was a carpenter.  On 22 October 2005, whilst he was carrying out carpentry work at Flat B, 3^rd Floor, Smily Co-operative Building, 41 Blue Pool Road, Hong Kong, he suffered injuries to his right index finger.

5.  He claimed employees’ compensation against one Yip Hoi-ching, whom he alleged to be his employer for the renovation work in the flat.

6.  However, Yip Hoi-ching claims that he was merely a fellow worker of the applicant and their employer was a Mr Mok.  Yip claims that he is not sure how the second and third characters of the name of this Mr Mok are written, but the full name is pronounced as 莫應倫.  He also claims that he does not have the address of 莫應倫, their previous contacts having been made by mobile telephone.

7.  The applicant has through the owner of the flat learned that the principal contractor responsible for carrying out the renovation work was one Mok Kam-lun（莫錦麟）formerly trading as Design Co-operation.

8.  It is the applicant’s case that he was recruited by Yip Hoi-ching to work in the flat.  He received orders from Yip to carry out work there and he was remunerated by him.  The applicant claims that he does not know莫應倫 or莫錦麟 at all.  He does not know (nor does Yip Hoi-ching know) whether莫應倫and莫錦麟 are one and the same person, or the relationship between them.  Nor does the applicant know the respective relationships, if any, between Yip and the two Mr Moks.

9.  By summons filed on 7 November 2008, the applicant applied to join both Mok Kam-lun and莫應倫 as co-respondents to the employees’ compensation proceedings, for being the principal contractor to the site and his employer (in the alternative to Yip Hoi-ching) respectively.  He also asked for an order of substituted service of the amended application on莫應倫 after joinder.

10.  The judge allowed the joinder in respect of the alleged principal contractor but refused leave to join 莫應倫as the alternative employer.  She took the view that it was an application to join a person whom the applicant had never met, did not know existed and could not locate.  She considered it to be an insurmountable task and an unreasonable application.  Given the total lack of details, including contact details, of莫 應 倫, the judge considered that it would be a futile exercise to join such a person as a co-respondent; after all, he could be a fictitious person.  She took the view that unless and until the applicant could obtain more concrete information about this person, she was not prepared to allow him to be joined as a co-respondent.

11.  The application to join the supposed principal contractor to the proceedings is understandable enough, given a principal contractor’s liability for payment of employees’ compensation pursuant to section 24 of the Employees’ Compensation Ordinance (Cap 282).  However, it appears that the alleged principal contractor was uninsured.

12.  The application to join莫應倫 as an alternative employer is equally understandable from the perspective of the applicant.  The primary reason is, of course, that if莫應倫 was really his employer, he would be liable to pay employees’ compensation to him (assuming a case for compensation could otherwise be made out).

13.  More importantly, if莫應倫 could never be located and he was not insured – which appears to be the case on the materials available, the applicant would have to look to the Employees Compensation Assistance Scheme Fund Board for payment of any employees’ compensation that might be awarded in his favour.  Section 16(2)(a)(i) of the Employees Compensation Assistance Ordinance (Cap 365) requires the entry of a court judgment against the employer for payment of employees’ compensation before such a claim may be made by an injured workman against the Fund Board.  Therefore joining the true employer and obtaining a judgment against him is absolutely crucial to the applicant for seeking payment of compensation from the Fund Board pursuant to the Ordinance.

14.  The decision of the judge under challenge involved an exercise of discretion on her part.  As a matter of general principle, the court does not lightly interfere with an exercise of discretion.  However, for the following reasons, I took the view that the exercise of discretion had to be disturbed.

15.  As has been pointed out by the editors of Hong Kong Civil Procedure 2009, Vol 1, para 15/6/6, prima facie, a plaintiff is entitled to choose the person against whom to proceed.  It is for the plaintiff to decide whom he wishes to sue.  He may or may not be successful in his claim.  The fact that the court allows a plaintiff to join a person as an additional defendant does not mean that the court takes the view that the plaintiff is bound to succeed against that additional defendant.  That is a matter for trial.  At the joinder stage, unless the court takes the view that the intended claim against the person sought to be joined is bound to fail or unless there are other special circumstances, the court should normally allow the plaintiff to choose his defendant.

16.  One such special circumstance would be joining a defendant after the expiry of the limitation period.  Another would be delay (causing real prejudice).

17.  In the present case, it cannot be said that the applicant has no arguable case against 莫應倫.  It is true that very little is known about this person.  However, his intended claim has the support of Yip Hoi-ching, who would no doubt give evidence at trial to say that he was a mere fellow employee in the common employment of莫應倫.  It is up to the trial judge to decide whether to accept such evidence on the balance of probabilities.  At this joinder stage, the court simply cannot say that the applicant has no possible case against莫應倫, or that that person must be a fictitious one.

18.  Prima facie, a claim for employees’ compensation must be made within 24 months from the date of accident: Employees’ Compensation Ordinance (Cap 282), section 14(1).  However, the court has a general discretion to allow the making of a claim out of time: section 14(4).

19.  In the present case, therefore, limitation does not by itself present an insurmountable difficulty.  More importantly, the judge did not rely on limitation (or delay generally) to refuse leave.

20.  The judge was influenced heavily by the fact that very little, if anything useful, was known about this莫應倫.  But this cannot be a valid reason for refusing joinder.  It happens from time to time that a person may have been wronged by another, or may have a cause of action against someone, whose identity is unknown, and for one reason or another, he may want or need to sue the latter and obtain judgment against him.  The law allows this to be done and the unknown defendant may simply be named as ‘John Doe’ (or ‘Jane Doe’ if the unknown defendant is believed to be a female).  The defendant may or may not enter an appearance after (substituted) service.  If he does, the action will be proceeded with just like any ordinary action save that the title of the action may need to be amended.  If he does not, whether judgment in his absence would be entered in favour of the plaintiff would depend on whether the plaintiff could prove his case to the satisfaction of the court. 

21.  The present case is an analogous one, save that the name of the alleged employer is in fact known.  As explained, it is crucial for the applicant to obtain a judgment (if he can) against the true employer, so that in the worst case scenario, he can seek payment of that judgment against the Fund Board.

22.  Thus analysed, the fact that next to nothing is known about 莫應倫 is neither here nor there.  Allowing the joinder applied for does not mean that the court at trial is bound to find in favour of the applicant against 莫應倫 either.  It is a matter for trial, as explained above.

23.  The correctness of the above analysis is illustrated by the simple fact that it is open to the applicant to commence another application for employees’ compensation against 莫應倫 and apply for consolidation of the two applications or for hearing them together.  Leaving aside the question of limitation (which the judge did not rely on to refuse joinder), the ability of the applicant to start a new application against 莫應倫 demonstrates the futility of refusing joinder in the existing application.  Of course, if limitation is something that would defeat this new application, it should have been relied on by the judge as a reason for refusing joinder.  But that was not the case.

24.  For the above reasons, I took the view that the exercise of discretion had to be disturbed, which fell to be exercised afresh by this Court.  In my view, the discretion should be exercised by allowing the joinder.  The delay in joining 莫應倫in the circumstances of this case was excusable and the primary limitation period should not stand in the way of the joinder: section 14(4), Employees’ Compensation Ordinance.  Moreover, no prejudice would be caused to the other respondents by the joinder.

25.  Consequential orders for amendment of the application and for substituted service, as prayed for in paragraphs 2 and 3 of the summons filed on 7 November 2008, should also be made.  As for costs here and below, they should be in the cause as between the applicant and 莫應倫, with legal aid taxation of the applicant’s own costs.

26.  Indeed those were the orders we made when allowing the appeal.