HAN PING YUEN v. TANG KOON TSAN AND ANOTHER

DCEC 528/2014

EMPLOYEES’ COMPENSATION CASE NO. 528 OF 2014

________________________

________________________

_____________________________

REASONS FOR DECISION
_____________________________

1.  The applicant (“Han”) claims compensation against the 1^st respondent (“Tang”) and the 2^nd respondent (“Koon Lam”) for injury at work pursuant to the Employees’ Compensation Ordinance, Cap 282 (“ECO”).  Judgment on liability has been entered against Tang upon his default in answering the claim and repeated absence from direction hearings.  Trial will take place on 16 February.

2.  By summons filed on 28 January, Han asked the court to order Koon Lam to answer his interrogatories by affidavit and to give leave to the parties to file further witness statements.  Han also asked that the trial scheduled should be vacated and re-fixed.  At the end of the hearing, I made the order summarised at the end herein.  I now explain my decision.

THE CASE

3.  According to Han, he had been employed by Tang since 2009.  His daily duties were to unload vegetables delivered by trucks to Koon Lam’s depot (“the Depot”) in the Cheung Sha Wan Wholesale Vegetable Market at Lai Chi Kok Road, Kowloon (“the Market”).  The accident allegedly happened in the early hours of 14 October 2012 when Han was unloading vegetables at the Depot.

4.  In his Application, Han says that Koon Lam contracted Tang to execute the work undertaken by it at the Market and was thus the principal contractor at the time of the accident.  Alternatively, Koon Lam was allegedly the employer of both Tang, who acted as a gang leader, and Han.

5.  As mentioned, judgment on liability was entered against Tang.  The case against Koon Lam and assessment of compensation proceed, and for such purpose, the parties have filed their respective witness statements in July 2015.

6.  In his statement, Han explained that he was one of 4 workers employed by Tang.  The employment was contracted verbally with Tang and he was paid daily wages in cash.  He followed the work instructions of Tang, who also provided hand-pushed trolleys for work.  Han also stated that Koon Lam either employed or contracted Tang to undertake at the Depot the sale of the vegetables collected from the vegetable farmers.  However he has no idea about profit sharing between Tang and Koon Lam.

7.  Koon Lam filed the statement of its manager, Mr Lee (“Lee”).  Lee gave an account of the arrangement and operation of the various co-operative societies, like Koon Lam, inside the Market, which was operated and supervised by the Vegetable Marketing Organisation (“the VMO”).  According to him, the vegetables collected from the farmers through the various co-operative societies would be sold through these societies at the Market.  The VMO and the societies would deduct what were described as commissions out of the sale proceeds.  Tang sold vegetables collected from a Mainland farmer.  He or his workers were never employed by Koon Lam.

THE APPLICATION

8.  As mentioned, Han took out the present summons on 28 January 2016.  It was supported by affirmation filed on 3 February, the day before the hearing.  Han asked essentially for the following orders:

(1) Koon Lam do by affidavit answer his interrogatories dated 18 December 2015 (“the Interrogatories”) within 14 days;

(2) Leave to Han to file supplemental witness statement within 21 days of receipt of (1) above, and then Koon Lam to file supplemental witness statement in reply within 28 days thereafter; and

(3) The trial fixed to commence on 16 February should be vacated and re-fixed.

9.  Immediately apparent was that an order in terms of either (1) or (2) above alone would mean the trial could not commence as scheduled.  The principle that the trial date, being a milestone date, shall not be moved unless in exceptional circumstances needs no introduction.  Han’s application would have to be considered in the light of the intention to bring about such consequence on the trial date.  For that, Han brought upon himself a heavy burden.

10.  By the affirmation in support, the solicitors for Han gave the following reasons for the application:

(1) Pursuant to counsel’s advice, specific discovery was sought and interrogatories were served on 18 December 2015.  The solicitors for Koon Lam replied by letter on 26 January 2016 (“the Reply”) but marked with “without prejudice save as to costs”, instead of open letter or on oath.

(2) The solicitors for Koon Lam disclosed a written contract between it and Tang on 22 January 2016.

(3) Counsel advised that more time would be needed to enable his completion of written advice for the Director of Legal Aid for the consideration of whether aid would be extended to Han to cover the trial.

The interrogatories

11.  This is a matter of discretion.  The principles are summarised in Hong Kong Civil Procedure 2016 (Vol.1) at §§26/4/5 – 26/4/15.

12.  To begin with, that the Reply was marked without prejudice was indeed odd.  Ms Law appearing for Koon Lam acknowledged that.  During the hearing, a copy of the Reply was provided to the court.  By that, Koon Lam answered every question asked of them; and Ms Law confirmed that her client had no objection to file an affidavit verifying the Reply as requested.

13.  As far as the substance of the Reply was concerned, it was not suggested (by the affirmation in support) that the answers triggered further investigation on behalf of Han, and hence the need for further time and leave to file further evidence.  What Ms Wong appearing for Han complained essentially was that questions 4, 5 and 7 of the Interrogatories were unanswered.  Of them, questions 5 and 7 were actually identical.  They were:

Question 4

“Please let us know who will collect the commission from the Vegetable Market on or before the accident.”

Question 5 (and 7)

“Whether the 2^nd Respondent has instructed/allowed/permitted the 1^st Respondent to collect the commission from the Vegetable Market on or before the date of accident.”

14.  To them, Koon Lam’s reply was that the questions could not be answered properly as the meaning of “commission” was not defined.

15.  The questions, according to how they were asked in the Interrogatories, were expressly referable to §2(b) of the Answer and §§4 to 7 of the statement of Lee of Koon Lam.  In §2(b) of the Answer, Koon Lam avers that Tang worked for one of the sellers of vegetables at the Market.  In §4 of his statement, Lee explained that the vegetable farmers would sell their vegetables through the co-operative societies like Koon Lam at the Market.  The societies would deduct what was said to be a commission (from the sales proceeds) for their daily operation expenses.  In §5 of his statement, Lee explained that upon completion of the sale of the vegetables at the Market, the co-operative societies and the VMO would deduct what are said to be commissions (from the sales proceeds).  These were how commissions were mentioned in the statement.

16.  Immediately apparent is the difficulty in understanding how those parts of the Answer and the statement of Lee gave rise to what Han’s solicitors were asking.  The questions were premised on a commission to which Koon Lam would be entitled and collectible from the Market.  It might be that Han was merely referring to Koon Lam’s commission, which might be held by the VMO for it as well.  But in view of how the questions were phrased, Koon Lam, in expressing its difficulty in answering unless the questions were clarified, could not be said to have failed or refused to answer.

17.  Even if I am wrong about what Han meant to ask by those questions, the questions could still be put to Lee at the trial.  As such, it was not suggested in the affirmation in support or demonstrated during the hearing that answers to those questions at this stage would save costs.

The contract between the respondents

18.  On the one hand, it might seem that the newly disclosed written contract between Tang and Koon Lam was an apparently relevant document disclosed too late.  On the other hand, that document was dated 2007, expressed to be valid for 1 year but it was 2 years prior to the time when Han was first employed by Tang.  During the hearing, all that the disclosure of that document was said to trigger, according to Ms Wong, would be the need to take instruction from Han about the person named together with Tang as the then contracting party of Koon Lam.

19.  The fact was that in both the Application and his statement, Han made no suggestion whatsoever about any person other than Tang who was responsible for hiring him in 2009 or involved in the operation at the Depot that he had contacted ever since.  In any event, instruction of that sort could have been taken in no time, but no explanation was tendered as to why this had not or could not have been done by the time of this hearing.

Time for legal advice

20.  Ms Wong reiterated the need for time to enable counsel to provide advice on the merits, which, as the solicitors for Han made clear, would also serve the purpose of the Director of Legal Aid in considering whether legal aid should be extended to cover the trial.

21.  Moving a trial to enable a party to obtain legal advice is never exceptional circumstance.  Further, counsel was assigned in August 2015, which was 3 weeks after the witness statements have already been filed and exchanged.  Those acting for Han actually proceeded to apply to set the case down for trial in September 2015.  If it was pursuant to counsel’s advice that request for specific discovery and further particulars of what statement of Koon Lam revealed was made, and that advice on merits remained pending, such advice was apparently obtained only past mid-December 2015.  No explanation was tendered as to why all those had not, as they could have, been done much earlier since August or September 2015.

Further witness statements

22.  Nothing at all was said in the affirmation in support of the application for leave to file further witness statements.  Han provided neither draft nor indication of the scope of the further witness statement to be filed for consideration of his application.  Apparently it was meant to be necessitated by Koon Lam’s answers to the Interrogatories.  But Han had received the Reply.  As mentioned, I do not see what Han would have to say as a result of those answers.  As to what were said to be the outstanding questions yet to be answered, the above section refers.

CONCLUSION

23.  On the principles governing application for interrogatories and further witness statements, I found the basis for the present application flimsy.  When such application was made with the additional view to vacating the trial date, the court would only, as it should, be more sceptical.  Han simply failed to discharge the added burden of showing exceptional circumstances justifying the changing of the milestone date.

24.  Hence the following order made at the end of the hearing:

(1) Koon Lam do file an affidavit verifying the Reply mentioned above on or before 12 February 2016;

(2) Rest of the summons is dismissed.

25.  As to costs, (1) above was more form than substance for Han’s purpose, and Koon Lam did not oppose to that.  Han’s insistence on his contention that Koon Lam has refused or failed to answer questions 4, 5 and 7 of the request failed.  Han achieved no real success in the present application.  Hence my order that the costs of the application be to Koon Lam in any event, to be taxed, if not agreed, and that Han’s own costs would be taxed in accordance with legal aid regulations.