KWAN TIM WO v. 黎永鴻

DCEC 1855/2018

[2019] HKDC 389

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.1855 OF 2018

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DECISION

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1.  Before me is an inter parte summons for specific discovery (the Summons) pursuant to O.24 r.7 of Rules of District Court (RDC) taken out at 2:35 pm on 11 Mar 2019 by applicant’s solicitors.

2.  Respondent’s solicitor appearing before me took 2 points to ask for the dismissal of the Summons, namely, that it was taken out prematurely and that the supporting affirmation fails to comply with O.24 r.7(2), RDC.

3.  By his Application, the applicant avers that he was a vehicle attendant-cum-delivery worker employed by the respondent on 16 Oct 2017. On that day, he claims that he was instructed by the respondent to deliver some Xerox papers and toners to a company at Aberdeen Street, Central. While he was pushing his trolley loaded with the goods down a steep slope at Aberdeen Street, he accidentally stepped on a ditch cover, slipped, fell backward and got injured.

4.  By his Answer filed 29 Jan 2019, the respondent specifically denies that the applicant was his employee. He avers that, since July 2017, he had contracted with 昭津國際有限公司 for goods delivery works (the Works) to clients of 富士施樂(香港)有限公司 (the Clients) at different designated locations of 6 districts in Hong Kong, one of them being from Sheung Wan to Aberdeen (the Sheung Wan District) where the alleged accident happened to the applicant.

5.  The respondent went on to aver that the Works for the Sheung Wan District had been contracted to one Mr Leung Ping Kuen (Mr Leung) since about Aug 2017.

6.  The respondent averred that it had 2 options for its driver contractors i.e. options A & B, whose details and differences are not required to be stated for present purpose.

7.  It was averred that Mr Leung chose option B at the material time. The respondent gave $55,000 per month to Mr Leung and provided him with a lorry truck. And Mr Leung had to arrange for tools and equipment, delivery man (if necessary) and all other miscellaneous expenses on his own.

8.  Every day, the respondent, it was averred, would give the order of delivery to the driver contractors including Mr Leung who needed to make sure that the Works were completed i.e. the goods from 富士施樂(香港)有限公司 were properly delivered to the Clients at designated locations on the same day.

9.  Finally, the respondent averred that he could not control Mr Leung. He had no idea whether Mr Leung employed the applicant at the material time because Mr Leung was not the employee of the respondent and the applicant was not employed by the respondent.

10.  By the Summons, the applicant sought order requiring the respondent to make and file affidavit stating whether 6 items of documents or 6 classes of documents in the Schedule thereof (the Schedule) is or has had at any time been in possession, custody or power of the respondent and, if any of them has been but are not now in respondent’s possession, custody or power, stating when he parted with the same and what has become of the same.

11.  The 6 items or 6 classes of documents sought in the Schedule are as follows: -

(1) Contract and/or Agreement between the respondent and Sui Jun International Ltd (昭津國際有限公司) for goods delivery works to clients of Fuji Xerox (Hong Kong) Ltd (富士施樂(香港)有限公司) at designated locations of 6 districts in Hong Kong from July 2017 to Dec 2017;

(2) Contract and/or Agreement between the respondent and driver contractors for Option A from July 2017 to Dec 2017;

(3) Contract and/or Agreement between the respondent and driver contractors for Option B from July 2017 to Dec 2017;

(4) Contract and/or Agreement between the respondent and Mr Leung from July 2017 to Dec 2017;

(5) Documentary evidence including payment records, cheques and receipts issued by the respondent to Mr Leung from July 2017 to Dec 2017; and

(6) Delivery Orders issued by the respondent to Mr Leung from July 2017 to Oct 2017.

12.  An affirmation was filed by applicant’s solicitors (the Affirmation) at the same time and date of the Summons in support thereof.

13.  Two letters from applicant’s solicitors to respondent’s solicitors were exhibited in the Affirmation.

14.  First, by letter dated 11 Feb 2019, applicant’s solicitors referred to the Answer and requested the respondent to disclose within 14 days the 6 documents or 6 classes of documents sought in the Schedule, saying that they are relevant to the issue of liability and undertaking to pay for their copying charges. 14 days elapsed thereafter and the respondent did not bother to reply at all.

15.  Secondly, on 4 Mar 2019, applicant’s solicitors again wrote to respondent’s solicitors referring to their earlier letter dated 11 Feb 2019. They further referred to court directions dated 7 Dec 2018 whereby parties are to file and serve list of documents within 84 days i.e. on or before 1 Mar 2019. They pointed out that they have not received any reply to their letter or any list of documents from the respondent, and demanded reply within 7 days, failing which they shall apply for specific discovery without further notice.

16.  The last day of this 7-day period fell on 11 Mar 2019. In the afternoon of that last day, as the applicant’s solicitors heard nothing from the respondent, they filed and served the Summons on respondent’s solicitors at 1600 hours[1].

17.  At 1842 hours on the same day, respondent’s solicitors faxed to applicant’s solicitors a letter replying to latter’s letter dated 11 Feb 2019 and saying they are instructed to reply: “1) copy contract enclosed”; “2) to 6) No”.

18.  The copy contract enclosed is one 運輸外判合作協議（紙品）between SJ Express Ltd (with the chop of 昭津配送有限公司) as party A and 力天富通拓展運輸公司 (with the respondent named as the person-in-charge) as party B (the Chinese Contract). The service area stated therein is “Hong Kong Island” and the cooperation period between the parties is from 1 July 2017 to 31 Mar 2019.

19.  On the next day i.e. 12 Mar 2019, the respondent filed his list of documents out of time without leave of court and disclosed the Chinese Contract in his list.

Discussion

20.  Mr Tam for the respondent first submitted that applicant’s solicitors should have waited until 12 Mar 2019 before taking out the Summons. As such, the Summons was, he argued, taken out prematurely and ought to be dismissed.

21.  This submission is, I think, devoid of merit.

22.  Considering the procedural history above, had the applicant’s solicitors waited for respondent’s reply for the rest of 11 Mar 2019, I have no doubt it would be a futile exercise. In other words, the respondent’s solicitors would not have replied to the applicant’s solicitors on their own had the latter so waited.

23.  I can only infer, and conclude, from the above procedural history that the respondent’s solicitors only saw fit to reply the applicant’s solicitors by fax at 1842 hours on 11 Mar 2019 because they were served with the Summons and not otherwise.

24.  Further, I agree with Ms Wong appearing for the applicant that the contents and enclosure of this fax letter dated 11 Mar 2019 are not adequate or satisfactory and that the taking out of the Summons is unavoidable even after its receipt.

25.  As Ms Wong pointed out, the Chinese Contract was chopped by Party A with a name in Chinese different from the entity in Chinese pleaded in the Answer at para 4 above.

26.  And the single word “No” given in reply to discovery sought of items (2) to (6) of the Schedule is, one thinks, too simple to be of comfort. Does it mean that the respondent disagree to their disclosure? Does it mean that the respondent has never had them in his possession, custody or power? Or does it mean that the respondent no longer has them in his possession, custody or power? Of course, this simple answer was not given on oath. It does not sit well with averments in the Answer verified by statement of truth signed by the respondent either.

27.  Indeed, notwithstanding this fax letter dated 11 Mar 2019, Ms Wong continued to press for discovery of all items sought in the Schedule when she appeared before me.

28.  For his part, Mr Tam elected before me not to file any affidavit in opposition to the Summons. However, he indicated to me that the respondent is agreeable to make and file affidavit for all 6 items in the Schedule if his 2 objections are overcome. Such affidavit would, he said, enable the respondent to explain the said “discrepancy” in company name above and to confirm on oath that the remaining documents have indeed never been in the possession, custody or power of the respondent.

29.  Hence, I do not accept this first objection.

30.  Secondly, Mr Tam complained that nowhere was found in the Affirmation a sentence stating “the belief of the deponent that the party from whom discovery is sought … has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application”.

31.  O24 r.7(2), RDC, I think Mr Tam rightly pointed out, expressly requires any application under that rule to be supported by an affidavit stating such belief. Due to none-compliance of that, this Summons, he argued, ought to be dismissed.

32.  But I disagree with this “technical” objection, as Mr Tam put it himself.

33.  It is true that the Affirmation did not include a sentence of such belief, as Ms Wong conceded before me.

34.  But I think it goes without saying by looking at the entirety of the Affirmation and its exhibits that the deponent of the Affirmation had so believed.

35.  By para 3 to 5 of the Affirmation, the deponent summarized the applicant’s case in para 3 above.

36.  By para 6 to 11 of the Affirmation, the deponent summarized the respondent’s averments in para 4 to 9 above.

37.  At para 12 and 13 of the Affirmation, the deponent stated the documents in the Schedule are relevant to the issue of liability in this application, namely, whether the respondent was applicant’s employer at the material time or not.

38.  At para 14 of the Affirmation, the deponent stated that she had requested the said documents from respondent’s solicitors and she exhibited applicant’s solicitors’ letters dated 11 Feb 2019 and 4 Mar 2019 at para 14 and 15 above.

39.  At para 15 and 16 of the Affirmation, the deponent confirmed not having received any reply from respondent’s solicitors, nor any list of documents from the respondent despite expiry of deadline of 1Mar 2019 for filing the same.

40.  At para 17 of the Affirmation, the deponent asked for order in terms of the Summons.

41.  Had the deponent of the Affirmation not believed from the averments of the Answer that the respondent has, or at some time had, in his possession, custody or power the documents specified in the Schedule, one thinks she would not have written twice to the respondent’s solicitors to demand their disclosure and taken out the Summons against the respondent as she did.

42.  In any event, Mr Tam had not drawn to my attention of any authorities on, or commentary of, O.24 r.7 of RDC that such “technical” omission in the particular circumstances of this case requires me to dismiss the Summons as he submitted.

43.  By O.2 r.1(1), RDC, any failure to comply with the requirements of RDC shall be treated as an “irregularity” and shall not nullify the proceedings or any step taken therein.

44.  I do not see what prejudice, if any at all, the respondent has suffered by such “technical” omission in this case. Mr Tam raised none before me and the stance of the respondent at para 28 above is, I think, worthy to be noted.

45.  This “technical” omission in this case is, in my views, no more than a mere “irregularity” and do not call for the dismissal of the Summons in all the circumstances of this case. In so far as may be necessary, I decide to waive the same in this case[2].

46.  This second objection also fails.

47.  Leaving aside for the moment the period of discovery sought, considering the pleadings, the Affirmation and its exhibits before me, there is, I think, a prima facie case of the existence of the 6 documents or 6 classes of documents in the Schedule in the current or past possession, custody or power of the respondent.

48.  These classes of documents sought in the Schedule, I agree, do relate to matters of liability in question in this application as deposed in the Affirmation.

49.  As Ms Wong added in her oral submissions, depending on the result of this discovery application, Mr Leung may need to be joined as a respondent and the 2-year time bar of doing so is due to expire in Oct 2019. I cannot but agree with her.

50.  However, discovery of items (2) & (3) of the Schedule is, in my views, not necessary either for disposing fairly of this application or for saving costs in terms of O.24 r.8(1) of RDC.

51.  The alleged accident happened in the Sheung Wan District on 16 Oct 2017, on which day, according to the Answer, the Works in that district was contracted out by the respondent to Mr Leung since Aug 2017 under option B.

52.  As such, contracts and/or agreements regarding option A or regarding option B driver contractors other than Mr Leung are not, I think, called for in this case.

53.  As to period of discovery sought, I do not see any ground for one to believe that documents relating to Mr Leung existed in July 2017 before alleged contracting out to him since Aug 2017.

54.  As the alleged accident happened in Oct 2017, post-accident documents in Nov and Dec 2017 are also, I think, not called for.

Disposition

55.  I therefore exercise my discretion and make an order in terms of para 1 of the Summons per items (1), (4) to (6) of the Schedule as amended as follows: -

(1) Contract and/or Agreement between the respondent and Sui Jun International Ltd (昭津國際有限公司) for goods delivery works to clients of Fuji Xerox (Hong Kong) Ltd (富士施樂(香港)有限公司) at designated locations of 6 districts in Hong Kong from July 2017 to Oct 2017;

(4) Contract and/or Agreement between the respondent and Mr Leung from Aug 2017 to Oct 2017;

(5) Documentary evidence including payment records, cheques and receipts issued by the respondent to Mr Leung from Aug 2017 to Oct 2017; and

(6) Delivery Orders issued by the respondent to Mr Leung from Aug 2017 to Oct 2017.

And, instead of 7 days stated in para 1 of the Summons, I give the respondent 21 days to make and file the required affidavit.

Costs

56.  Finally, I make an order nisi in terms of para 2 and 3 of the Summons. It shall become absolute if none applies in writing to vary it within 14 days.