WONG HON CHUEN v. CHUNG KING CHUNG formerly trading as GRASSCITY FREIGHT CO

DCEC 987/2018

[2019] HKDC 1712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 987 OF 2018

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DECISION

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1.  The applicant’s summons is dismissed. These are the reasons for my dismissal of the summons.

2.  Insofar as the legal principles governing discovery are concerned, the parties are not in dispute and I do not need to repeat them.  Those principles are trite.  I apply those principles when considering this summons.

3.  First, the documents that the applicant sought in the summons are framed in such a way that the application appears, in my view, to be fishing for evidence.  The subject matter of the application, according to paragraph 1 of the summons, is to require the Non-party to “make discovery … a copy of the service contract or logistic contract or whatsoever carrying the same or similar meaning entered between the Respondent and the [Non-Party]”. In my view, when the application is framed in such wide terms, the Non-party would not know whether it has in its possession the document being referred to.

4.  Second, the original purpose for which the summons was issued was already overtaken by events.  It is not in dispute that the summons was issued for the dominant purpose of locating the respondent. When these proceedings were first commenced, the applicant was not able to serve these proceedings on the respondent by ordinary means of service: by registered post and by personal service.  As a result, the applicant persuaded a judge to grant an order for substituted service by serving the employees’ compensation application by advertisement.

5.  Notwithstanding the substituted service order, this court, in a Directions Hearing, directed the applicant to make further attempts to establish the respondent’s valid address for service.  Eventually, the applicant, through the assistance of the former solicitors of the Non-party, was provided with more information regarding the respondent.

6.  The respondent was eventually notified of or served with these proceedings and the respondent later attended a directions hearing in person.  In that hearing attended by the respondent in person, the applicant was able to obtain interlocutory judgment against the respondent. 

7.  Having obtained the interlocutory judgment, the applicant thereby succeeded in establishing liability against the respondent on the basis that he was the employer. By then, the applicant should have considered whether the summons was still necessary.

8.  According to Mr Wong’s written submission, the reason why the applicant still wanted to pursue the summons was because he wanted to find out the contractual relationship between the respondent and the Non-party.

9.  In my view, Mr Wong has probably overlooked an earlier order for specific discovery against the respondent.  By that order, the respondent was ordered to make specific discovery of a service contract between the respondent and the Non-party, which document was in fact the same subject matter as that sought in this summons.

10.  The respondent appeared to have (be it purportedly or actually) indeed complied with the discovery order by disclosing a document that he described as a quotation document, which document is in fact the same document the former solicitors for the Non-party had already given to the applicant albeit that document was described by a different name as a “pro forma invoice”.

11.  Whatever name the parties use to describe the document really does not matter.  What really matters is the actual substance of the document.

12.  In my view, the document the applicant was already provided with goes beyond the usual “invoice” document.  Normally an “Invoice” is a document that sets out quotations and such like.  Yet, the said document is more than an invoice in the sense that it contains some agreement terms between the respondent and the Non-party beyond mere price quotations. For example, in the last clause towards the end of the document at paragraph 5, it provides for the termination of “contract”.

13.  It is quite clear that the applicant, having had sight of this document provided by the respondent pursuant to the order for specific discovery, should have been able to satisfy himself that this was indeed the service contract entered between the respondent and the Non-party.

14.  Should the applicant not be satisfied that the discovery order against the respondent has actually been complied with, and doubts whether the document the respondent disclosed is indeed the service contract that he is seeking, it is open to him to raise further enquiries by making a further request for particulars from the respondent’s response.

15.  Mr Wong informed this court at the hearing that the solicitors had indeed written to the respondent, but they received no response. I have not been shown any documents about the further inquiries that Mr Wong referred to. So, I cannot be satisfied as to whether proper inquiries have been made.

16.  Specific discovery is a matter of discretion. For the reasons that I have stated above, I am not satisfied that this is a suitable case for me to exercise my discretion to allow discovery.

17.  Regarding the disputed basis of costs, the applicant does not resist paying the costs of the Non-party, and the only question that I need to determine is whether I should accede to the Non-party’s counsel’s submission that I should order costs on an indemnity basis.

18.  I have referred to the parties a passage in the 2020 edition of the White Book at page 1331, paragraph 62/App/12.  That short passage sums up the broad principles governing the criteria, if I may use this word correctly, for ordering costs on indemnity basis.

19.  As the Court of Appeal had indicated in the case that was referred to in the passage, the circumstances for ordering a party to pay indemnity costs are not in a straitjacket.  It all depends on the circumstances of each case and the court has a wide discretion in this matter.  So I bear this in mind when considering whether the applicant should pay costs on an indemnity basis.

20.  Ms Ng has accepted (and to a certain extent has sympathy for the applicant) that the applicant did not prosecute this summons with malice or vexatiously.  She also accepted that the reason why the applicant had chosen to proceed with this summons after the happening of the events which I have earlier highlighted in my reasons for dismissal, was because the pressure from the ECAS Fund Board.

21.  From the correspondence exchanged, the applicant, as evidenced in the letter dated 8 May 2019 by the applicant’s solicitors to the Non-party’s former solicitors, had indicated his desire to withdraw the summons, subject to the Fund Board’s view.

22.  Subsequently, the applicant’s solicitors received a response from the Fund Board on 21 May 2019. In it the Fund Board drew to the solicitors’ attention the requirements an applicant has to satisfy before an application for payment to the Fund Board can be made under section 16(3) of ECAO. By those provisions, whenever an employee who is not able to obtain payment from the employer and the employer is without insurance, the employee can only recover payment from the Fund Board if the employee can satisfy the Fund Board all reasonable steps have been taken to recover payment.  That includes application for payment from the principal contractor.

23.  I accept Mr Wong’s submission that the applicant’s decision to proceed with the summons was due to the extra caution that the applicant took in ensuring that the applicant could subsequently look to the Fund Board for payment.

24.  This is a case where the employer did not have any valid insurance for employees. Hence, I consider it unfair in such circumstances to order the applicant to pay costs to the Non-party on an indemnity basis. I direct the costs to be paid on a party-and-party basis.

25.  As to the objection to the granting of certificate for counsel, I accept Mr Wong’s submission that this is a straightforward summons for specific discovery.  There is no complication involved. Hence, notwithstanding my deep appreciation for the very helpful submission made by Ms Ng, I do not think that this is a case where I should grant certificate for counsel.

26.  My order is as follows: -

(1)  The summons is dismissed;

(2)  The applicant do pay the Non-party the costs of and incidental to the summons on a party-and-party basis;

(3)  The costs are to be summarily assessed if not agreed within 14 days from the date hereof;

(4)  Should the parties fail to agree on costs, there shall be an assessment on paper by the Non-party lodging and serving a Statement of Costs within 14 days from the date hereof;

(5)  The applicant do lodge and serve his objection thereto 7 days thereafter; and

(6)  The costs will be summarily assessed on paper within 28 days of the Non-party’s lodging of the Statement of Costs.