BAM GANESH v. HUSSAIN MAROOF

DCCJ3125/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3125 OF 2005

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J U D G M E N T

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1.  The plaintiff claims against the defendant for services rendered between July 2002 and May 2003 in the sum of $383,000 for 191½ hours of work at the rate of $2,000 per hour.  The plaintiff amended his claim to 128 hours and 55 minutes at the same rate of $2,000 per hour, totalling $257,833 at the close of the plaintiff’s case at the trial.

2.  The plaintiff claims he carried on a business of an interpreter and conducted liaison work for the Nepalese and Pakistani community working and living in Hong Kong.  The defendant is not represented at the trial of this action and he claims he is Pakistani and speaks only his native tongue, Urdu, and the Indian dialects of Punjabi and Hindi only.  As he does not speak English or Cantonese he spoke through the court interpreter at the trial.

3.  The defendant denied he is liable to the plaintiff for the sum claimed.  However, he admitted in his defence that he did agree to engage the services of the plaintiff to act as his interpreter for his hospital visits and visits to various government departments and legal visits to solicitors after he sustained injuries in an industrial accident in June 2002.  It is the defendant’s claim that the plaintiff had performed an approximate 40 hours of work for him at the agreed rate of $204 per hour. 

The Plaintiff’s case

4.  The plaintiff, Mr Bam, gave evidence at the hearing adopting his witness statement dated 13 January 2006 in which he claimed the defendant was introduced to him at his office in or about July 2002 by a Nepalese lady in the name of Madam Thapa Yogmaya.  The defendant engaged at that meeting his services as an interpreter in relation to the personal injury damages claim.  They then proceeded to negotiate the plaintiff’s fee.  The defendant offered the plaintiff 25 to 30 per cent of the amount of damages he would recover but the plaintiff asked for an hourly rate at $2,000 for his interpretation services plus disbursements.

5.  The plaintiff claimed that the defendant agreed to his charging an hourly rate of $2,000.  After the initial meeting at the plaintiff’s office, the plaintiff, Mr Bam, claimed he attended medical appointments, the Legal Aid Department and meetings at solicitors’ firms, etc., with the defendant on various occasions.  In the plaintiff’s statement of claim and his witness statements, he failed to give a full breakdown of the medical visits and legal visits he attended with the defendant as the defendant’s interpreter. 

6.  At the court’s request, the plaintiff’s legal representative, Mr Wong, drafted a table of breakdown figures with dates and cross-references to the supporting letters and medical chits, sick leave certificates and medical reports.  In it, the number of hours claimed by the plaintiff on each date of the visits were supplied.  This document was produced and confirmed by the plaintiff as true.  It is marked Exhibit P1.  It is not disputed that the defendant’s common law damages claim was eventually settled after he was granted legal aid and subsequently represented by, first, Messrs S.T. Poon & Wong and later on by Messrs Henry H.C. Wong & Co’s Mr Rodney Ko.  Mr Ko subsequently moved to the firm, Messrs Li & Partners in 2005.

7.  The common law damages claim and the employees compensation claims were settled at the total sum of $1,250,000 in May 2005 before the commencement of the common law damages claim.  The plaintiff claimed that the defendant has failed to pay him his interpretation services up to now. 

The Defence case

8.  The defendant gave evidence at the hearing, adopting his witness statement of 30 December 2005.  He claimed that after the accident on 5 June 2002 he was initially assisted by friends who could speak either English or Cantonese whenever he visited the hospital for treatment.  Not being conversant with either English or Cantonese he found he had to seek the help of an interpreter when he visited the hospital or the Labour Department for his employees’ compensation claim and common law damages claim.  The friend who assisted him after the accident was leaving for employment in the United Kingdom in December 2002, so in or about September or October 2002 he went to see the plaintiff and ask for his assistance.

9.  The defendant claimed that he met the plaintiff on the first occasion visiting him alone at the plaintiff’s office.  The defendant admitted that he had negotiated the plaintiff’s hourly rate down from $2,000 an hour and $1,500 an hour.  Later on, the plaintiff offered to take $500 to $600 an hour.  Eventually they agreed on $204 an hour for the plaintiff’s interpretation services.

10.  According to the defendant, the plaintiff added “You pay me more money when you receive the compensation”.  The defendant further disputed the number of hours the plaintiff claimed he worked as the defendant’s interpreter.  The defendant claimed that the plaintiff asked him to call him when his medical appointment came up after he arrived at the hospital for follow-up treatments.  He claimed this was in the hospital in Jordan, according to the plaintiff, the hospital was Queen Elizabeth Hospital. 

11.  The defendant claimed the medical visits did not last as long as claimed by the plaintiff, and was not four hours (including 30 minutes travelling time) each visit.  The defendant claimed that they were approximately 20 to 25 minutes each only, except for two visits which lasted about an hour, and these took place between 5 July 2002 and 19 September 2002.  The defendant admitted, however, the plaintiff did spend 1½ hours accompanying him to the MRI examination on 18 July 2003 and he was also accompanied by the plaintiff acting as his interpreter at the visit to Dr Lau Hoi Kuen, a private orthopaedic surgeon, for a one-hour visit, after which Dr Lau prepared a medical report.

12.  The defendant also admitted that on 1 November 2002 he visited the Tuen Mun Hospital for his back pain and he called the plaintiff to come and interpret for him because he had been suffering from pain since the night before, and that particular visit took 2½ hours.  He said the plaintiff was in Yuen Long on that day and therefore it did not take him long to travel to Tuen Mun.

13.  The defendant further admitted that the plaintiff acted as his interpreter on eight occasions at the Legal Aid Department.  The first visit was much longer than the subsequent visits, lasting between 2½ to 3 hours while the other visits were about half an hour to one hour each only.

14.  As to the legal conferences at solicitors’ offices in Central, the defendant admitted that an approximate 15 to 18 hours were spent and only the first visit took a longer time; it was 1½ hours long.  He claimed that he would arrange to meet the plaintiff at the Central MTR station and therefore these interpretation services only commenced after they met up at the MTR station.  The defendant also admitted that the plaintiff went with him to the Tuen Mun Social Welfare Department office and the visit had taken about three hours.  He denied the plaintiff accompanied him to the Social Welfare Department  office on four occasions because the plaintiff had only advised him and told him where to go to apply for Comprehensive Social Security Assistance.  As to the plaintiff’s visiting him at the Tuen Mun Town Centre, the defendant admitted the plaintiff had only visited him once to talk to him and to have a beer with him; it was not a visit as his interpreter.  He further denied that the plaintiff had visited the Treasury twice as instructed by him.  He also denied the site visits as claimed by the plaintiff.

15.  The number of hours the defendant admitted the plaintiff to have acted as his interpreter was 40 hours in total.  The hours he referred to in his evidence came to approximately 30 hours and 15 minutes and he admitted to have agreed to pay the plaintiff an hourly rate of $204.  The defendant called a friend, Mr Mohammad Yasin to give evidence on his behalf.  Mr Mohammad Yasin admitted he went with the defendant once  in November 2002 where the defendant met the plaintiff at his office.  Mr Mohammad Yasin claimed that he overheard the plaintiff and the defendant agreeing on the hourly rate of $204 for services rendered by the plaintiff.  He claimed what he overheard was confirmed by the defendant after the conversation took place. 

Findings

16.  I find the plaintiff to be an articulate person, even though he was speaking through a Nepalese interpreter, he clearly had a sound business mind.  He set up a business offering interpretation services to his countrymen and ethnic minorities from the Indian Sub-continent, including Pakistani and Indians, using his skills in the Indian languages and English, which he acquired during his studies in India.

17.  Both the plaintiff and the defendant admitted the plaintiff was engaged as the defendant’s interpreter for the purposes of attending hospital visits and legal visits pending the defendant’s personal injury claim for damages suffered by him in an industrial accident on 5 June 2002.  The only dispute is the rate of hourly charges and the number of hours spent by the plaintiff.  Unfortunately, there was nothing in writing concerning the agreement between the plaintiff and the defendant engaging the plaintiff as the interpreter. 

18.  I find the defendant to be a less articulate person.  He reacted slowly to the questions put to him in cross-examination.  He relied heavily on the interpretation of the interpreter.  He is obviously less educated and less sophisticated than the plaintiff.  As to the plaintiff’s claimed work hours he relied heavily on the documents supplied by the defendant, such as the medical sick leave certificates, the correspondence between the defendant’s then solicitors and the solicitor acting on behalf of the insurance company in his common law damages and employees’ compensation claim.

19.  The plaintiff produced few if any record kept by himself.  The hours claimed by the plaintiff, listed on his chart and on Exhibit P1, is, at best, guesswork on his part.  His legal representative, Mr Wong, prepared Exhibit P1 and an annexe to the final submission based on the plaintiff’s evidence and based on documents produced by the defendant. 

20.  With the aforesaid in mind, I have scrutinised critically the breakdown of the plaintiff’s claimed work hours and the number of hours and the nature of the visits he claimed on the hospital visits claim.  The defendant’s sick leave certificates testified to his visits to the Queen Elizabeth Hospital and these visits were supported by them.  The only question is whether the plaintiff commenced his interpretation services for the defendant from 5 July 2002 onwards or was it only after September/October 2002.

21.  On the basis the defendant admitted he had attended two of the Queen Elizabeth Accident & Emergency visits by himself, and he admitted to five visits to the Queen Elizabeth Hospital in total, comparing the defendant’s evidence with his sick leave certificates, there were in fact five visits other than the two that preceded 5 July 2002 to the Accident & Emergency Department of the Queen Elizabeth Hospital, two of these were to the Queen Elizabeth Orthopaedic Specialist Clinic.  Presumably those were the two one-hour visits when the defendant was examined by the orthopaedic surgeon.  I am therefore prepared to accept the plaintiff had visited the Queen Elizabeth Hospital Accident & Emergency Department on four occasions from 5 July 2002 to 12 August 2002.  Then he accompanied and acted as interpreter to the defendant on the two orthopaedic clinic visits on 26 August 2002 and 19 September 2002.

22.  I find it difficult to accept that each of these visits took four hours, even though the plaintiff is claiming half an hour for travelling, it is unlikely that each visit would last as long as 3½ hours.  I am prepared to accept a visit lasting two hours, including travelling time, to be more reasonable and acceptable for the seven visits claimed, making a total of 14 hours.

23.  As to the two private clinic visits to Dr Lau and the MRI exam, I am satisfied that the Dr Lau visit lasted for one hour and the MRI visit, 1½ hours, a total of 2½ hours.  As to the visit to the Legal Aid Department, I accept the plaintiff’s claim under Item 2 of his chart annexed to Mr Wong’s final submission, that the pre-settlement visits to the Legal Aid Department, the total numbers of hours spent to be 8 hours and 35 minutes.

24.  As to the solicitor’s visits, under Items 3 and 4, I accept the plaintiff’s calculation of 6 hours 45 minutes for three visits to Messrs. S.T. Poon & Wong, including travelling time, and I also accept the Item 4 claim of 48 hours to Messrs. S.T. Poon & Wong and Rodney Ko.

25.  I find under Item 5 that the Labour Department visit on 26 February 2003 to be a reasonable claim.  The plaintiff claimed he had accompanied the defendant to the Labour Department to lodge or to explain his claim to the Labour Department and the defendant obviously required the services of an interpreter for such a visit and I allow the claim of 3 hours 50 minutes.

26.  As to Item 6, the plaintiff claimed four to five visits to the Department of Legal Aid after settlement of the defendant’s claim, the meetings took a total of 6½ hours, with 2 hours claimed as travelling time.  I find the hours claimed to be exaggerated because they took place after the settlement of the defendant’s claim.  It is more reasonable for such visits to last less than one hour each, if there were four to five visits.  Even including the travelling time, I would allow a total of 6½ hours in total.

27.  As to Item 7, the plaintiff claimed he had accompanied the defendant to the Social Welfare Department  for application of Social Security application on four occasions, each lasting three hours, including travelling time.  The defendant totally denied these visits.  Further, two visits to the Treasury Department, in total four hours, was claimed and four visits to the defendant, which the plaintiff called site visits. 

28.  The defendant admitted to one such visit by the plaintiff to him at Tuen Mun, which he denied was a site visit.  The rest were all denied by the defendant.  These visits were not supported by any documents or letters or anything in writing at all.   Their accuracy is highly suspect.  The defendant further claimed that the plaintiff had only visited him on a social occasion once in Tuen Mun Park Centre.  Based on the background of this case, that the plaintiff’s services rendered to the defendant was only as an interpreter not as the defendant’s agent for common law damages, I will allow the plaintiff’s claim of four visits to the Social Welfare Department and the hours claimed of three hours each, totally 12 hours.

29.  As to the issue of hourly rate.  After hearing the evidence of the plaintiff and the defendant and the defendant’s witnesses, Mr  Mohammad Yasin, I find the defendant’s evidence to be supported by Mr Mohammad Yasin on the aspect of the hourly rate.  I am satisfied that the defendant could not have agreed to pay the plaintiff for interpretation service at $2,000 an hour.  He was in no position to make such a promise because he had no income after his industrial accident; he was living on Social Security.  A $2,000 hourly rate is an astronomical sum to him, it is quite unlikely for him to have promised to pay such a fee.  On the other hand, it is more credible that he would agree to an hourly rate of $204.  He might have promised to be more generous if he was awarded a large sum of compensation but there was clearly no agreement as to what kind of bonus the plaintiff would be paid and, in any event, the plaintiff based his case on an hourly rate of $2,000 and his services as an interpreter charged on an hourly basis.  It was not his case he would get a bonus should the defendant be successful in his compensation claims.

30.  As the defendant’s evidence on the aspect of hourly rate is supported by Mr Mohammad Yasin, who overheard the conversation between the plaintiff and the defendant on the occasion he accompanied the defendant to the plaintiff’s office, I accept the evidence as more convincing and has a ring of truth.  I find Mr. Yasin to be an honest witness.

31.  In conclusion, I allow the following hours that the plaintiff claimed to have offered his interpretation services to the defendant. 

1.	Queen Elizabeth Hospital visit	14 hours
2.	Dr Lau Hui-kuen’s clinic and the MRI	2½ hours
3.	The Legal Aid Department visit:
	pre-settlement	8 hours 35 minutes
4.	Visit to the solicitor’s office:
	first period	6 hours 45 minutes
	second period	48 hours
5.	Labour Department visit	3 hours 50 minutes
6.	Legal Aid Department visit:
	post-settlement	6½ hours
7.	4 visits to the Social Welfare Department	12 hours
	Total:	102 hours 10 minutes
$204 per hour multiplied by 102 hours 10 minutes = $20,842

32.  On the aforesaid basis I award to the plaintiff judgment in the sum of $20,842 with interest from the date of writ to the date of judgment at half judgment rate, thereafter at full judgment rate until full payment.

Costs

(Submissions on costs)

33.  The plaintiff had chosen to engage legal representation at the commencement of this trial.  He had, at the initial stage, decided to take an action against the defendant in the District Court and at the end of the trial it was found that his claim was exaggerated.  The judgment against the defendant was found to be less than $21,000, which is well within the Small Claims Tribunal jurisdiction.  His case should have remained in the Small Claims Tribunal, not in the District Court at huge expense of legal costs for a 3-day trial.  I make no order as to costs against the defendant.