Rana Netra Kumari v. China Technology Corporation Ltd and Another

DCEC 1951/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1951 OF 2015

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Before: HH Judge Levy in Chambers

Date of Hearing: 28 November 2017

Date of Ruling: 28 November 2017

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R U L I N G

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The following is the transcript of the ruling in respect of the summons dated 31 October 2017 issued by the respondents pursuant to O.38 r.2A and O.40 rrs 4 and 6 of the Rules of the District Court. The headings and words in square brackets are inserted in the transcript for clarity.

A.　The witness statement of Ghale Ganga Man

1.Upon the respondents deciding to withdraw the application in relation to the supplemental witness statement of Mr Poon, it only leaves this court to decide whether the witness statements of Mr Ghale (I should simply describe him as Ghale) and Madam Yu should be allowed to be adduced.   Mr Leung for the applicant objected to the granting of leave to be given to [the adducing of] these statements.

2.I firstly deal with the witness statement of Ghale.  It is common ground that Ghale was the direct supervisor of the applicant at the [alleged accident] site on the date of the alleged accident. According to his witness statement, Ghale provided evidence in relation to three matters: first, the location of the accident; [second], the applicant’s work site as well as [third], the alleged accident and what happened afterwards.

3.Mr Leung objected to the adducing of this witness statement on the ground that it has little probative value. In relation to the content concerning the alleged accident, [Mr Leung contended] that since Ghale has stated in the witness statement that he was not able to recall such accident, it was therefore not necessary or useful to call Ghale as a witness. As to the other [two] areas which Ghale has alluded to in his witness statement, Mr Leung objected to them on the ground that [first], in relation to the location of the accident, it lacked detail such as a diagram of the site. All it contains is only a written narration.  Insofar as the duties [described in the statement] were concerned, he said that since the statement did not disclose the applicant’s contract, it was not necessary for Ghale to give a description of the duties.  In any event, [the witness statement] was not relevant.

4.Mr Wong submitted that since Ghale was the direct supervisor of the applicant, the truthfulness of the witness statement was not really relevant for the purpose of the court’s consideration.

5.I agree with Mr Wong.  It is quite clear, as I have remarked during Mr Leung’s submissions that in the applicant’s witness statement, after she had described in detail as to how she came by the accident, she had clearly identified Ghale as the person who first came to her when she creamed with pain after the alleged accident.  As there is a serious dispute as to how the applicant sustained her injury or whether an accident as alleged by the applicant actually took place, this is an issue that needs to be decided in the forthcoming trial.  It is highly probative in my view to have Ghale to be called as a witness.

6.In this case, apart from the matter concerning whether an accident has happened (which he stated he could not recall), Ghale has, in his witness statement, described the location of the site and also the [applicant’s] duties [in relation to her employment with the 1^st respondent]. Given the fact that Ghale was the direct supervisor of the applicant, he would likely be able to provide useful and important information in assisting the court in understanding the site, the scope of the applicant’s duties and the place where the applicant allegedly met the accident on the date of the accident.  For these reasons, I reject Mr Leung’s arguments and allow the application for the adducing of Ghale’s witness statement.

B.　Yu’s witness statement

7.The grant of leave for the adducing of Mr Ghale’s witness statement in my view has a direct bearing on my consideration of Madam Yu’s witness statement.  Madam Yu’s witness statement is very brief.  The gist of her statement can be found in paragraphs 3, 4 and 5. [In it, it was stated that] she was employed by the 1st respondent as the cleaner on the site. She has alleged that the applicant’s employment duty was similar to hers. She had also alluded to the fact that she had not seen the applicant carrying out more heavy duties such as transporting construction materials.  These are essentially what she has described in her witness statement. 

8.First, I do not find such evidence probative. Despite the fact that she was employed by the 1st respondent, she has not (as I have observed at the beginning) exhibited an employment contract setting out [the scope of] the duties that she has described in her witness statement.

9.Secondly, given the fact that I have allowed the adducing of Ghale’s witness statement and given particularly the fact that Ghale was the direct supervisor of the applicant, all matters in relation to the scope of duty and the kind of work [the applicant was employed] to perform could be given by Ghale when he comes to testify.

10.Mr Leung made a valid point when he said that whether Madam Yu had seen the applicant perform other duties is neither here nor there.  The fact that she had not seen [the applicant carry out such work] does not mean that the applicant had not done the work that she had allegedly said she did in her witness statement.  For these reasons, I would disallow the adducing of the witness statement of Madam Yu.

C.　Costs

11.This is my ruling on costs.  This summons contains two matters.  The main application is in relation to the adducing of witness statements and [ Mr Poon’s] further witness statement. The second part is the respondents’ application to call the respective orthopaedic experts to attend trial [to give oral evidence]. 

12.I deal with the costs on the expert matter first.  After discussion between the bench and Mr Wong, it was then agreed that instead of calling the experts to give oral evidence, it would be more costs-saving to request the experts to further elaborate their opinions at this stage in a joint supplemental report.  Mr Leung for the applicant has all along held a neutral stance. Hence, in my view, this is more in the nature of case management in relation to expert directions.  So, for that reason, I think a fair costs order in relation to the part [of the summons] for the calling of the experts should be costs in the cause.

13.Insofar as the matter in relation to the witness statements is concerned (I have generally referred to the witness statements even though one of them is in fact a supplemental witness statement), they are concerned with three witness statements. The applicant has since withdrawn the application in relation to Poon [‘s supplemental witness statement] but continued to pursue [the application] in relation to Ghale and Madam Yu.

14.Mr Leung has objected to the adducing of the witness statements of Ghale and Yu.  At the end, after having heard the submissions of parties, the court has only allowed the respondents’ application in relation to Ghale but disallowed Yu’s.  If one were to do a fair apportionment, I would say that the respondents have failed on two statements out of three, and Mr Leung has actually failed to successfully contest one out of three, so to speak, because he failed in his argument in relation to Ghale.

15.Hence, for the purpose of fairness, I disagree that the costs should be in the cause as suggested by Mr Wong.  I take the view that the costs should be properly apportioned to reflect the extent of the success or the failure on the part of the respondents in persuading the court to allow all three witness statements to be adduced.   Accordingly, I order the respondents to pay the applicant two-thirds of the costs in relation to the application for leave to adduce witness statements. 

16.[In addition, there will be] certificate for counsel.  So, as for the costs in relation to paragraphs 1 and 2 [of the summons], I order that two-thirds of the costs be to the applicant with certificate for counsel.  I order that costs in relation to [paragraphs] 4 and 5 of the summons be costs in the cause.

Mr Kelvin Leung, instructed by How & Co, for the applicant

Mr Damian Wong, instructed by Kennedys, for the 1^st and 2^nd respondents