HONG CHUN TAK v. YIP KAN KEE CONTRACTING CO LTD AND ANOTHER

DCEC 849/2017

[2018] HKDC 335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 849 OF 2017

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D E C I S I O N

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A.　THE JOINDER SUMMONS

1.  In these employees’ compensation proceedings, the legally-aided applicant claims against a Yip Kan Kee Contracting Company Limited (“Employer”) for compensation in respect of a personal injury by accident allegedly arising out of and in the course of employment with the latter on 23 September 2015.

2.  Section 14(1) of the Employees’ Compensation Ordinance (“ECO”) prescribes a time limit of 24 months for, among other things, the bringing of proceedings for the recovery of compensation unless a court, pursuant to s.14(4), “is satisfied that there was reasonable excuse for the failure … to make an application”.

3.  When the applicant applied by summons (“Summons”) dated 6 November 2017 for leave to join the alleged principal contractor, “趙裕興 trading as 趙興記工程公司” (“Chiu Yue Hing trading as Chiu Hing Kee Eng. Co” (“Intended R2”), as the 2nd respondent in these proceedings, he was late by about 1 and ½ months. 

4.  For convenience, I shall, unless otherwise specify, refer to the business name “趙興記工程公司” (“Chiu Hing Kee Eng. Co”) of the Intended R2’s business as “Chiu Hing Kee” and its proprietor “趙裕興” (“Chiu Yue Hing”) as the “Proprietor”.

5.  The Summons is opposed by an affirmation of the Proprietor. The unpresented Employer did not file any affirmation in opposition or attend the hearing of the Summons.

6.  Miss Lo of Messrs. Liu Chan Lam (“LCL”) represented the applicant on the assignment of Legal Aid. Mr Alex Fan, counsel, acted for the Intended R2 to oppose the Summons. The Employer was absent despite having been served with the Summons.

7.  By s.14(4) ECO, the applicant shall be required to satisfy this court there was reasonable excuse for the delay in joining the Intended R2.

B.　THE APPLICANT’S EXCUSES FOR THE DELAY

8.  The applicant supported his application by an affidavit of Miss Lo (“Lo’s Affidavit”), which was filed together with the Summons. After Mr Fan served his written skeleton on LCL, Miss Lo then filed a short 2^nd affidavit on 2 March 2018, principally to exhibit a business registration search record of Chiu Hing Kee dated 23 December 2016. Upon being satisfied with Miss Lo’s explanation that she had previously omitted to exhibit the said search record from Lo’s Affidavit, I granted leave to the applicant to file the said affidavit.

9.  Apart from the above evidence, the applicant also relies on the undisputed documents that LCL produced in the hearing bundle.  In addition, Miss Lo has also very helpfully attached to her skeleton submissions a chronology of events.

10.  Based on the evidence that LCL adduced on behalf of the applicant and the undisputed documents, Miss Lo put forward two excuses for the delay: (i) the Intended R2 failed to register the business; and (ii) the Employer failed to respond to the applicant’s written requests for the information of the principal contractor that the Employer had disclosed.

11.  Before discussing these excuses, it is necessary to mention at the outset the Form 2 (“Form 2”) dated 18 November 2015, the notice of the accident, which the Employer submitted to the Labour Department. In the Form 2, the Employer named “趙興記工程公司” (“Chiu Hing Kee”) as the principal contractor. It is the applicant’s case that the applicant hitherto did not have any knowledge that the Employer had a principal contractor, let alone its name.

12.  The Intended R2 was at fault, so the first excuse goes.  The Intended R2 has failed to register its business.  The fact of non-registration was in fact admitted by Mr Fan at the hearing upon the production of the result of the further exhaustive searches this court allowed Miss Lo to conduct at the hearing. It was therefore submitted that had the Intended R2 properly registered its business, LCL would have likely obtained the necessary information from the business registration searches they conducted on “趙興記工程公司” (“Chiu Hing Kee”) as early as 23 December 2016, the first search LCL conducted. Hence, Miss Lo stated, it would have allowed the applicant plenty of time well before the expiry of the prescribed time to join the Intended R2.

13.  For the second excuse, the applicant blamed the Employer, for having ignored the written requests made by LCL on three occasions on 6 January, 27 February and 28 March 2017 for the details of the principal contractor the Employer disclosed in the Form 2.  Since these requests were all made before the expiry of the limitation period, the applicant could have likely, Miss Lo submitted, made the application within time had the Employer cooperated by providing the necessary details.

14.  When neither of the above efforts yielded results, LCL then wrote on 21 September 2017 to the Labour Department for information of the principal contractor as disclosed in the Form 2.  It was then only on 9 October 2017 by the Labour Department’s reply that LCL was given the full name of the Intended R2 and its correspondence address to enable the applicant to issue the Summons.  By then, it was already out of time.

15.  Hence, Miss Lo submitted, due entirely to the fault of the other parties, the applicant was late in joining the Intended R2 and therefore the excuses are reasonable.

C.　GROUNDS OF OBJECTIONS

16.  The Intended R2 raised three grounds of opposition to the Summons: (i) the applicant has failed to satisfy a “joinder test” requirements provided in O.15 r.4 and r.6 (5)(a) and (6) of the Rules of the District Court (“RDC”); (ii) the applicant has failed to provide reasonable excuse for the delay, and (iii) the applicant’s intended claim against the Intended R2 is doomed to fail.

17.  I will refer to these three grounds respectively as the “joinder test”, “reasonable excuse” and “merits” grounds.  Since Mr Fan’s second objection on the ground of failing to provide “reasonable excuse” is the only ground that touches upon the requirement within the ECO framework, I think it is the most important objection, and will discuss it first.

D.　WAS THERE ANY “REASONABLE EXCUSE”

D.1　The relevant guidelines

18.  Both Mr Fan[1] and Miss Lo[2] cited a number of authorities on  the various considerations courts have taken into account when determining the question of “reasonable excuse” under s.14(4) ECO.  Since the question of what constitutes “reasonable excuse” is largely fact-sensitive, and may vary from one case to another, I do not therefore find it helpful for the parties to refer to previous decisions on the exercise of discretion. Undisputedly, the most authoritative guidelines are those stated by the Court of Appeal in Tsang Loi Fat (曾來發) v Sun Fook Kong (formerly known as Sung Foo Kee Ltd) (新福港 (前名為孫福記營造有限公司))[3], one of the authorities Miss Lo cited.

19.  When determining what constitutes “reasonable excuse”, the Court of Appeal in Tsang Loi Fat listed a number of factors that in their view are relevant: (a) the age, education level, intelligence and background of the claimant; (b) whether a claimant has sufficient knowledge for the making of a claim; (c) whether a claimant’s failure to make the claim within the prescribed time is due to his illness or not being aware of the extent of his injury; and (d) whether the failure was induced by the conduct of others: Tsang Loi Fat at paras [11] to [13].

20.  The Court in Tsang Loi Fat further emphasized that these factors it listed are non-exhaustive. Hence, I do not think that this court needs to be constrained from considering other factors not mentioned in Tsang Loi Fat. I indeed find other factors that are relevant in this joinder application, which will be discussed below.

D.2　The relevant factors

D.2.1　Length of delay

21.  The length of delay is obviously one of the important considerations. Needless to say, the longer the delay, the more prejudice that may likely be caused to a party proposed to be joined.

22.  The delay (of about 1 and ½ months) in this joinder application cannot by any measure be regarded as long.

23.  The Intended R2 does not contend otherwise. Neither did the Intended R2 suggest any prejudice caused by this relatively short delay. Mr Fan however took issue with the one-month period – between 9 October 2017 (when LCL obtained the information of the Intended R2 from the Labour Department, see para 14 above) and 6 November 2017 (the filing of the Summons) in respect of which Mr Fan contended the applicant should be called upon to explain. The applicant’s failure in adducing any evidence to explain the delay of one month should be regarded as a factor against his application, Mr Fan stated.

24.  It is true that there is no evidence as to why the applicant did not promptly issue the Summons shortly after LCL was provided with the needed information of the Intended R2 on 9 October 2017.  As the applicant is seeking an indulgence, the one month’s delay, albeit short, should be properly accounted for. I therefore find the lack of explanation unsatisfactory. Nonetheless, after having given allowance for the reasonable time needed for LCL to prepare the Summons such as taking instructions from the applicant, obtaining approval from the Legal Aid Department, and collating documents etc, I am satisfied that one month is a reasonable time for the issuing of the Summons.

D.2.2　The Intended R2 had failed to register its business

25.  The applicant relies heavily on the now admitted failure of the Intended R2 to register its business as an excuse for the delay.  Undisputedly, had the Intended R2 registered its business, LCL would have likely been able to, from the business registration searches they conducted, obtain the necessary details of the Intended R2 for joining it in the proceedings within time either on or about 30 June 2016 or 28 February 2017 on which dates LCL respectively conducted business registration searches on “Chiu Hing Kee”.   

26.  For this reason, I find that the Intended R2’s failure in registering its business provides an excuse that is as valid as it is compelling for the delay.  It cannot be denied that had the Intended R2 properly registered its business, the applicant, when commencing these proceedings on 19 April 2017, would likely have the details of the Intended R2 from the business registration searches LCL conducted on 30 June 2016 or at a later date on 28 February 2017 to claim against the Intended R2 as the 2^nd respondent alongside the Employer.  This Summons might not have been needed.

27.  I therefore accept the applicant’s explanation that one of the reasons for the delay is due to the fault of the Intended R2.

D.2.3　The Employer’s failure to provide details of the principal contractor

28.  An employer (sub-contractor) is statutorily obliged, pursuant to s.24(4) ECO, to provide to an employee, within 7 days of the employee’s request, the name and address of the former’s principal contractor.

29.  The Employer in this case is indeed subject to the s.24(4) duty to furnish the information of “趙興記工程公司” (“Chiu Hing Kee”) whom he had identified in the Form 2 as the principal contractor. According to the evidence LCL produced, I am satisfied that the Employer had indeed breached its statutory duty when it ignored the repeated requests made by LCL on three occasions on 6 January, 27 February and 28 March 2017.

30.  Granted that it is unknown whether the Employer had more information other than what had been stated in the Form 2, I am nonetheless satisfied that the Employer’s disregard of LCL’s written requests provides a legitimate excuse to the applicant for its delay in joining the Intended R2 within time.

D.2.4　Has LCL contributed to the delay

31.  After having found that the applicant had reasonable excuses on the basis of the two reasons that Miss Lo advanced, I should next deal with the criticisms Mr Fan laid against LCL in respect of two matters: (i) the applicant failed to adduce any evidence as to when the applicant or LCL first knew that the Employer had revealed the existence of a principal contractor; and (ii) there is no explanation as to why LCL only wrote to the Labour Department on 21 September 2017 (see para 14 above) to inquire about the information of  “趙興記工程公司” (“Chiu Hing Kee”) disclosed in the Form 2.

32.  In relation to criticism (i), the applicant appears to be quite vague as to when he learnt of the existence of a principal contractor in the name of “趙興記工程公司” (“Chiu Hing Kee”) disclosed in the Form 2. There is no evidence as to when the applicant or his solicitors obtained a copy of the Form 2 or been informed of the disclosure of “趙興記工程公司” (“Chiu Hing Kee”).

33.  After an examination of the documents LCL produced, I believe that the likely date, according to a reference to a letter of 30 June, would have been 30 June 2016 when the Labour Department provided a copy of the Form 2 to LCL. The reference can be found in the letter on 21 September 2017 from LCL to the Labour Department, in which LCL state: “We refer to your letter dated 30^th June 2016. We note from the Form 2 that 趙興記工程公司 [“Chiu Hing Kee”] was stated as the principal contractor” (underline is added).

34.  As it has been established that LCL probably knew of the name of “趙興記工程公司” (“Chiu Hing Kee”) as the principal contractor on 30 June 2016, it would mean that from around that time, according to the undisputed chronology of events, they had waited for about 15 months before they wrote to the Labour Department on 21 September 2017 (see para 14 above).  Whilst I accept that during this period of time, LCL was indeed taking various steps to find out information on “趙興記工程公司” (“Chiu Hing Kee”) by conducting business registration searches and making inquiries from the Employer, there is nothing, in my view, to have stopped them from concurrently approaching the Labour Department for information.

35.  Apart from repeating the same excuses by blaming the Intended R2 and the Employer, Miss Lo did not make any valid riposte to the criticisms by Mr Fan.

36.  In the absence of an explanation from LCL, the said delay could jeopardize the applicant’s joinder application if it is shown that such delay has materially contributed to the delay in the making of the joinder application.

37.  Pausing here, apart from the lack of explanation for the matters that are discussed above, I have further found that LCL have not adduced any evidence in relation to whether they have attempted to locate information of the principal contractor by the contact phone number the Employer also disclosed in the Form 2.  Such contact phone number might likely be a useful source of information on “趙興記工程公司” (“Chiu Hing Kee”) named by the Employer.

38.  If there had been evidence that the Labour Department had had the information of the Intended R2 well before 9 October 2017, or that the contact number stated in the Form 2 would have yielded useful information about the Intended R2, LCL would have likely been found to have materially contributed to the delay in the bringing of the proceedings against the Intended R2.   I find no such evidence.  In the circumstances, despite these questions over LCL’s handling of the matter, I am not inclined to the view that they have materially contributed to the delay.   

D.3　My view

39.  In conclusion, having regard to the relatively short delay, the failure of the Intended R2 to register the business which I have found most culpable for the delay, and the Employer’s breach of its statutory duty, I am satisfied that the applicant has provided “reasonable excuse” in accordance with s.14(4) ECO.

40.  After having overcome the hurdle under s.14(4), the applicant needs to deal with Mr Fan’s two other arguments in resisting the Summons, which I now address.

E.　“JOINDER TEST” GROUND

E.1　The alleged additional requirements

41.  In his first ground of opposition based on a proposition Mr Fan labelled as a “joinder test”, Mr Fan referred to O.15 r.4 and r.6 of RDC as the requirements for this test.  In attempting to explain this test, Mr Fan, in his skeleton (at para [10]), states as follows:

“Since [the applicant] now seeks to join [the] Intended R2 as a party by way of the Joinder Application under RDC O15 r4 (instead of commencing a fresh action), all the relevant considerations pertaining to an application for joinder of parties, including those under RDC O15 r6, become relevant and applicable. In short, [the applicant] has to satisfy the “joinder test” in addition to proving the reasonable excuse under ECO section 14(4)”.

42.  Mr Fan’s submissions are believed to have largely derived  from a decision of a Deputy District Judge in Tsui Man Kit Michael v Hung Lap Ming[4] , which Mr Fan referred to as “the seminal case”.  Referring to the approach the court in Tsui Man Kit Michael adopted, Mr Fan was emphatic in his submissions that the commencement of a fresh action against the Intended R2 would have been a better option for the applicant than taking out the Summons. It was stated by issuing a fresh action out of time, the applicant only needed to satisfy the s.14(4) ECO requirements whereas the applicant in this Summons would be required to overcome the additional other hurdles, one of which being the requirements stated in O.15 r.6(5)(a) and r.6(6). Hence, in his written skeleton, Mr Fan highlighted “instead of commencing a fresh action”, and the “joinder test”, the latter of which being additional requirement to s.14(4) ECO.

43.  Miss Lo took issue with Mr Fan on the “joinder test” requirements on the ground that the provisions of O.15 r.6(5) which Mr Fan relied only apply to a limitation period governed by the Limitation Ordinance, which does not apply to these proceedings.

E.2　Discussion

E.2.1　The test propounded in Tsui Man Kit Michael

44.  Since Mr Fan placed heavy reliance on Tsui Man Kit Michael in advancing his arguments on “joinder test”, I will begin with a brief discussion of this case. Tsui Man Kit Michael is also concerned with employees’ compensation proceedings. The subject application in that case was also similarly an application by the claimant to join a new party outside the 24-month limitation period with an exception that in that case the claimant had not served the joinder application on the party proposed to be joined.  The test for an out of time application to join a new party, according to the learned Deputy Judge (at paras [40] to [42]), consists of two requirements which an applying party needs to satisfy: (i) the requirements of joinder of party; and (ii) the requirements of s.14(4) ECO.

45.  Hence, apart from the requirements of showing “reasonable excuse” under s.14(4) ECO, the Deputy Judge in Tsui Man Kit Michael required additional requirements for “joinder of party”.  I am not clear what requirements the Deputy Judge was referring to, as they do not seem to have been spelt out in the judgment. It is evident that the Deputy Judge,  when coming to this view, was apparently under the impression that the Limitation Ordinance applied to employees’ compensation proceedings when he cited an obita dictum (see para 46 below) of the Court of Appeal  in Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [5], which was concerned with the English statute, the Limitation Act, the English equivalent of the Hong Kong Limitation Ordinance.  

46.  Tsang Yu was a personal injuries action. The Court of Appeal dismissed an appeal by the defendant against a court’s refusal to strike out the plaintiff's statute-barred claim, which was a fresh claim the plaintiff only issued after having failed in his application to amend the writ of his earlier claim by adding the defendant. The passage of the Court of Appeal (para [34]) the Deputy Judge relied on is as follows:

“where a plaintiff seeks to claim against a new party at a time when the limitation period relevant such claim has plainly expired and the new claim does not come within the conditions prescribed by s.35(5)(b) of the Limitation Act, the proper course is to issue fresh proceedings against the new party rather than to attempt to amend subsisting proceedings against another party to add or substitute the new party as a defendant.”

47.  Since Tsang Yu is a personal injuries claim, its limitation period was therefore governed by the Limitation Ordinance, which provided for a period of 3 years to commence an action. Hence, the Court of Appeal’s reference in the passage to the commencement of a fresh action was made in the context of a very different statute of limitation, which does not apply to employees’ compensation proceedings. The Deputy Judge, with the greatest respect, had quoted Tsang Yu out of context.

48.  Hence, I do not agree with Mr Fan that Tsui Man Kit Michael is an authority which supports his submission that commencing a fresh action is a better course. In any event, I am unable to find any support from my reading of Tsui Man Kit Michael for the court’s view that starting a new action was a better option. All that I can find is a reference by the Deputy Judge to the court’s power to consolidate a new claim with the existing claim under O.15 r.4: see Tsui Man Kit Michael, para [50].  The institution of a fresh action is, in my view, not only inconsistent with the spirit of the underlying objectives of the Civil Justice Reforms of saving costs and of promoting procedural economy if a new party could be joined in the same proceedings, it is, more importantly, not in line with the spirit of the ECO regime of informality and simplicity so that employees’ compensation proceedings can be resolved speedily.

49.  In any event, as the reasoning of Tsui Man Kit Michael appears to be based on a statute which does not apply to employees’ compensation proceedings, I am therefore of the view that it cannot support Mr Fan’s proposition for an additional “joinder test” the applicant is allegedly required to satisfy in this Summons.

E.2.2　Are O.15 r.6(5)(a) and r.6(6) applicable

50.  Notwithstanding that Mr Fan has referred to O.15 r.4 and r.6(5)(a) and (6) as the requirements an applicant needs to fulfill, it is unclear what kind of requirements Mr Fan is referring to. As Mr Fan appears to focus his submissions on O.15 r.4 and r.6(5)(a) and (6), I need to discuss these provisions in greater detail.

51.  Mr Fan, rather than elaborating upon the requirements under these rules, seems to be rather wavering in his arguments. At first, Mr Fan in fact relied on the entire O.15 r.6(5) and (6). It was only when he was asked to clarify whether the Limitation Ordinance mentioned in r.6(5)(b) should apply to employees’ compensation proceedings, that Mr Fan stated that he was merely referring to O.15 r.6(5)(a) but not the entire sub-para(b).

52.  Irrespective of Mr Fan’s abandonment of his reliance on O.15 r.6(5)(b) that provides a specific reference to ss.27 and 28 of the Limitation Ordinance, he still, in my view, cannot escape the problem concerning the Limitation Ordinance. When he decided to only rely on O.15 r.6(5)(a) and (6) to circumvent the problem with the Limitation Ordinance, he had probably overlooked the fact that r.6(5) is bookended by a small paragraph that states ‘In this paragraph “any relevant period of limitation means a time limit under the Limitation Ordinance (Cap.347).”’ The reference to “any relevant period of limitation” is found in r.6(5)(a) as follows:

53.  Rule 6(5) provides that:

“No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either –

(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or…” (underlining is added).

54.  Following from O.15 r.6(5)(a) is r.6(6) that provides as follows: -

“The addition or substitution of a new party shall be treated as necessary for the purpose of r.6(5)(a), if, and only if the Court is satisfied that – [(a) to (e)[6]]”.

55.  As it is plain that O.15 r.6(6) is integral to r.6(5)(a), which provisions are concerned with the limitation period governed by the Limitation Ordinance, these provisions are hence clearly inapplicable to the ECO regime.

E.2.3　O.15 r.4, RDC

56.  In his submissions, Mr Fan also made brief reference to O.15 r.4 though he did not elaborate further on this rule or contend that the applicant had not fulfilled the provisions of this rule. Since this Summons was made pursuant to O.15 r.4, I should also determine whether the Summons is in line with this rule.

57.  Under O. 15 r.4, RDC, the joinder of parties is subject to two conditions: (a) the right to relief must in each case be in respect of or arise out of the same transaction or series of transactions; and (b) that there must be some common question of law or fact (see Hong Kong Civil Procedure 2018, Vol 1, para 15/4/1, p.330).

58.  Since the statutory framework of employees’ compensation does not provide for any procedure for the joining of a new party out of time, a party (as the applicant has done in the Summons) will need to invoke the appropriate provisions in the RDC, pursuant to s.21 ECO. This practice has been firmly established to be practical procedural mechanism to  fill in the gap of the statutory regime so long as it does not conflict with the existing statutory framework of the employees’ compensation proceedings[7].

59.  In this case, I am satisfied that the Summons has fulfilled the two requirements stated in para 57 above. First, the relief the applicant is seeking against the Intended R2 in the capacity of a principal contractor undoubtedly arose from the same transaction (the accident). Second, the issue of whether the Intended R2 should be held liable as the applicant’s principal contractor or in some other capacity is a common question of law or fact that needs to be determined at trial.

E.3　My view

60.  For the reasons above, I reject Mr Fan’s second ground of opposition.

F.　THE MERITS GROUND

61.  In this last ground of contention, Mr Fan suggested that the applicant’s intended claim against the Intended R2 is doomed to fail on the ground that the applicant has little evidence, apart from the allegation made by the Employer in the Form 2 that “Chiu Hing Kee” was the principal contractor, against the Intended R2.

62.  Miss Lo on the other hand submitted that this court should not be, at this stage, too concerned with the chance of the applicant’s success against the Intended R2 so long as the applicant could provide sufficient basis for joining the Intended R2.  The Form 2, Miss Lo stated, has provided sufficient basis for the joinder.  The issue as to whether the Intended R2 is the principal contractor, Miss Lo suggested, should be determined at trial.

63.  An employee does not have a direct employment relationship with a principal contractor. Hence, it is not uncommon that an employee does not know whether a principal contractor is involved or if there is, the principal contractor’s identity. The applicant in this case was exactly in such a situation. According to the evidence, the existence of the principal contractor was only revealed in the Form 2 the Employer submitted to the Labour Department.

64.  Despite the fact that the applicant presently has very little evidence against the Intended R2, I do not agree with Mr Fan that the evidence is so tenuous that the case against the Intended R2 is doomed to fail.  On the undisputed evidence, including the Intended R2’s own evidence, I consider that there is sufficient evidence indicating that the Intended R2 may be liable to the applicant as the principal contractor.

65.  Firstly, the Intended R2 is a business entity that is capable of being sued albeit it has not been registered.  In the affirmation filed in opposition to the Summons, the Proprietor admitted being the “sole proprietor trading as Chiu Hing Kee Eng. Co”.

66.  Secondly, the following evidence the Proprietor discloses in his opposition affirmation appears to be material to the issue of liability.

(i) The Proprietor knew the director of the Employer, Chu Kan.

(ii) Around the date of accident in September 2015, the Intended R2 was engaged by the same client as the Employer, a Miss Wat.

(iii) The place where the Intended R2 was engaged to carry out water pipes and drainage works was also the same place as the accident – a small house in Tze Tong Tsuen.

(iv) The Proprietor introduced Chu Kan of the Employer to Miss Wat to carry out non-water works in the same place as the accident, the small house.

67.  All in all, I do not agree with Mr Fan that the proposed claim against the Intended R2 is doomed to fail.

G.　CONCLUSION AND ORDER

68.  For the reasons above, I’m inclined to exercise my discretion to grant leave to the applicant to join the Intended R2 as the 2^nd respondent in these proceedings.

69.  I grant an order in terms of the Summons as amended as follows:

(1) Order in terms of para 1 save that the applicant is directed to effect the following amendments to the proposed “Amended Application” annexed to the Summons: -

(i) Deletion of para 2(e).  Since the question of leave is already disposed of at the hearing, the proposed para 2(e) is not required and should be deleted.

(ii) Making of corresponding amendments to para 3(3). The word “Respondent” in that paragraph should be amended to separately specify the respondents as the 1^st or (and) 2^nd respondent(s), as the case may be.

(2) The applicant shall file the Amended Application as amended in accordance with the directions in para (1) above within 14 days, and at the same time serve the same on the 1^st respondent (by registered post) and the 2^nd respondent.

(3) The 1^st and 2^nd respondents shall file and serve an Answer to the Amended Application within 21 days of the service of the Amended Application.

(4) There be a costs order nisi that the costs of the Summons be in the cause as between the applicant and the 2^nd respondent, with certificate for counsel.

(5) The costs order nisi shall stand absolute if no application is made to vary it within 14 days from the date of the handing down of this judgment.

(6) The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

70.  I further order that: -

(1) The above order be drawn up in Chinese and submitted for the court’s approval within 5 days, which order shall be served on the 1^st respondent (by registered post) and the 2^nd respondent within 2 days of the sealing of the order.

(2) There be a Directions Hearing on 1 June 2018 at 10:30 am at Court no 26 of the District Court.

71.  Lastly, I thank Miss Lo and Mr Fan for their assistance.