CHU CHAN CHEUNG v. CHOI HUNG ENGINEERING CO LTD AND OTHERS

DCEC401/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 401 OF 2007

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R U L I N G

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1.  The 1st respondent made an application to adduce further witness evidence at the trial.  The summons for this application was issued on 29 May 2009. 

2.  From the submissions made on this application and from the opposition skeleton submissions from the applicant’s counsel, Mr Wong, it is clear that the 1st respondent had notice of the applicant’s further witness evidence through the witness statement served in October 2007.  It was more than one and a half years ago.  Yet, the 1st respondent only decided to call this new witness, Mr Tang, and issued this application by summon on 29 May 2009, eight days before the first day of the trial.

3.  The only explanation given was that the witness was reluctant to come to court to give evidence for the 1st respondent.  The witness evidence would be used to prove, according to the 1st respondent, a negative fact, the negative fact meaning that Mr Tang himself was not at the same construction site working alongside with the applicant and that he had been asked by the applicant to give evidence on his behalf on the accident.

4.  Mr Wong, counsel for the applicant, in his written submission in opposition, agreed that the applicant had tried to call the same witness, Mr Tang, to give evidence for the applicant and Mr Tang had also turned him down.  Under this situation, since October 2007, the 1st respondent should have ample time to gather other evidence to prove this negative fact which could be obtained from another witness or documentary evidence.  There are much better ways of proving the attendance of the applicant at the construction site where the applicant claimed he had the accident, such as the attendance records, or evidence from the foreman, or the site safety officer’s evidence.

5.  Since this witness, Mr Tang, had resisted to come to court as a witness for either the applicant or the 1st respondent for the last two years, the reason for his recent consent to be the 1st respondent’s witness at the eleventh hour has not been explained satisfactorily.

6.  After considering the probative value of the evidence of this Mr Tang and the long delay in the 1st respondent’s attempt of adducing the evidence from this particular witness eight days before the first day of the trial, I do not think the application should be allowed.  For this reason, I reject and refuse the application with costs against the 1st respondent.