WONG KIN v. HIM KEE FOOD DISTRIBUTION CO LTD

DCEC 1771/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1771 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN:

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D E C I S I O N

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1. This is the respondent’s application for, inter alia, a direction for the parties to file and exchange further witness statements as to facts and for the trial dates to be vacated (“1^st application”) and for discovery of certain bank statements of the applicant (“2^nd application).

2. The applicant commenced these proceedings against the respondent as his employer on 12 October 2012 in relation to an accident that allegedly took place on 20 September 2011.  The matter has been set down for trial on 2 December 2013 with a total of 5 days reserved.

3. On 31 August 2013, the applicant applied for leave to amend the application by adding an alternative claim that the respondent should be held liable to pay employees’ compensation as a principal contractor within the meaning of the Employees’ Compensation Ordinance (“amendment application”).  This alternative claim is premised on the applicant being an employee of one Futer Trading Development Limited (“Futer”) to whom the respondent had sub-contracted part of its delivery works.

4. On 8 October 2013, HH Judge Chow granted the amendment application.   

5. Two weeks later, the respondent took out the 1^st application by way of its summons dated 22 October 2013.  Yet another week later, the 2^nd application was taken out by way of its summons dated 31 October 2013.

6. By consent, leave was granted for the respondent to file an amended answer while the remaining applications under the two summonses were adjourned for argument, which came before me today.

7. The applicant opposed the applications mainly on grounds of the need to vacate the trial dates and submitted that there existed no exceptional circumstances justifying the variation of the milestone date as required by Order 25, r3(3), RDC.

8. Mr. Matthew Tse, Counsel for the applicant, drew attention to the fact that it was the respondent’s witness statements which first brought in Futer as the respondent’s sub-contractor for delivery works in which the applicant was engaged at the material time.  I note that Mr. Cheng Wai Piu (“Mr. Cheng”) did aver in his witness statement filed on the respondent’s behalf on 3 June 2013 that he heard from Mr. Ling Tin Cheung, the proprietor of Futer (“Mr. Ling”), that the applicant was a sub-sub-contractor and not an employee of Futer. 

9. I pause here to note that it then took well over two months after 3 June 2013 for the applicant to take out the amendment application. By then the matter had already been set down for trial. On any account, the amendment application was very late. 

10. Mr. Tse submitted that, the respondent having brought Futer into the picture, the issues between the parties would be not just whether the respondent was an employer of the applicant as originally pleaded but also whether the respondent was the principal contractor of Futer and whether Futer was an employer of the applicant.  And the amendment application was to bring in those issues to enable the court to determine the real controversy between the parties.

11. Insofar as the submission appears to have shifted the whole responsibility onto the respondent, I do not think it is a fair presentation of the background.  It is always the applicant’s duty to put forth his whole case, whether or not on an alternative basis.  In this regard, attention must be drawn to the applicant’s Notice of Accident dated 14 December 2011 to the Labour Department where he put down the name of Mr. Ling as his employer and described him as a sub-contractor of the respondent who in turn was named as the main contractor.

12. Miss Winnie Chan, Counsel for the respondent, pointed out that in the light of the applicant’s original claim, the respondent’s evidence focused on refuting any employment relationship between the parties. 

13. Miss Chan submitted that the 1^st application was necessitated by the granting of the amendment application, which the applicant had all the time he needed to take out but did not take out until 3 months before trial, and the respondent should not be put under a time constraint in its preparation of evidence to deal with the applicant’s newly added case.

14. The respondent asks for a direction that the parties do file and exchange witness statements in 56 days.  What the respondent has in mind is first to file a witness statement of Mr. Ling to address the relationship between Futer and the applicant.  Miss Wong said 56 days was being sought because Mr. Ling needed more time to locate documents that would go to support his assertion in his affirmations filed on the respondent’s behalf in opposition to the amendment application, namely, that the applicant was his sub-contractor instead of employee. 

15. The respondent wishes further to file a supplemental statement of Mr. Cheng to address certain new allegations of the applicant in his affirmations in support of the amendment application.

16. No drafts have been appended to the 1^st application and one has no idea as to what Mr. Cheng might say in his supplemental witness statement or whether this would give rise to a need for the applicant to respond.  Miss Chan said this was because the application was for filing and exchange of witness statements, hence the absence of a draft up till now.

17. A good idea as to the likely evidence from Mr. Ling, however, can be gleaned from the three affirmations of his mentioned above. 

18. Mr Tse pointed out that the respondent did not ask for leave to file further witness statements at the time the amendment application was heard.  Even in its letter of 10 October 2013, the respondent only asked for 28 days to file Mr. Ling’s witness statement which could have been made available by November without affecting the trial date (had consent of the applicant been forthcoming). 

19. The court is not here to adjudicate on the relative degree of fault of the parties hereto.  From the above, however, one can see that each party has a part to play in giving rise to a possible need for varying a milestone date, namely, the trial date here. 

20. For one thing, the amendment application was on any account very late when the applicant could have set out his whole case to cover also Futer from day one.  That counsel advice came late does not avail him of an excuse for not doing so, particularly when this would cause prejudice to the respondent or otherwise put the latter in a predicament as the respondent now finds itself in. 

21. But it is also true that Futer would not have been brought into the picture if not for the reference in the statements of the respondent’s witnesses to the hearsay evidence from Mr. Ling about the applicant’s status as a sub-sub-contractor of Futer, thereby obliging the applicant to amend his claim to bring in an alternative claim involving Futer, which was hitherto neither in the picture nor a party hereto.  

22. Then came the late amendment application which was granted only on 8 October 2013.  It then took another two to three weeks for the 1^st and 2^nd applications to come round.  As Mr. Tse pointed out, the need for adducing evidence from Mr. Ling should have become obvious to the respondent at an earlier time, especially when Mr. Ling should have been willing to testify for the respondent by September if not earlier.

23. Miss Chan explained that time was needed for locating relevant documentary evidence relating to Futer’s case and the respondent’s solicitors were working on the same. 

24. As to Mr. Ling’s evidence, the respondent’s predicament could have been resolved to a large degree if I allow the said three affirmations of his, which are fairly comprehensive, to stand as his evidence in chief at trial if he is called as a witness. 

25. However, Mr. Tse opposed this on the grounds that he would have difficulty in cross-examining Mr. Ling without knowing any details about how Futer operated.  Discovery would have to be sought.  The applicant’s main position is of course to keep the trial dates.

26. A trial date should only be vacated in exceptional circumstances.  I am satisfied that, given the unsatisfactory state of evidence on the issue of the relationship between the applicant and Futer and the need for both parties to either make or seek discovery relating to Futer, exceptional circumstances exist herein for the trial dates to be vacated to allow the parties time to file and exchange witness statements on the relationship between the applicant and Futer.  Ultimately, the purpose is for a fair disposal of all issues in dispute herein.

27. I am however not minded to grant leave for the filing of a supplemental witness statement of Mr. Cheng.  I agree with Mr. Tse that the absence of a draft is in itself a good ground for disallowing the same.  In any event, insofar as the intended supplemental evidence of Mr. Cheng is meant for addressing certain allegations in the applicant’s affirmations filed in support of the amendment application, the need for which is now spent, the intended supplemental evidence of Mr. Cheng is unnecessary.

28. As to the 2^nd application, as Mr. Tse has kindly indicated that the applicant is able to produce the documents under request, I need only make an order to reflect the agreement.

(Discussions on proposed directions and costs)

29. I therefore order as follows:

(1)   The applicant do file and serve on or before 4 December 2013 an affirmation to confirm whether he had maintained a bank account with the Bank of China (Hong Kong) Limited, Nanyang Commercial Bank and Chiyu Banking Corporation Limited during the period from June 2011 to September 2011;

(2)   The trial dates of 2 to 6 December 2013 be vacated;

(3)   The parties do file and exchange a supplemental witness statement of the applicant himself and a witness statement of Ling Tin Cheung on or before 2 January 2014;

(4)   The parties do take out all further interlocutory application on or before 30 January 2014;

(5)   There be a direction hearing on 28 February 2014 at 10:30 a.m. at Court 11; and

(6)   The parties do make a joint application for further directions on or before 14 February 2014.

30. Both parties are responsible for bringing about the current state of affairs.  To preserve their costs position, the only fair order for the costs of the 1^st and 2^nd applications, including the costs of today’s hearing and any costs that might become wasted, to be costs in the cause with certificate for counsel and the applicant’s own costs to be taxed in accordance with the Legal Aid regulations.