Xiao Mulan for Herself and on behalf of Members of the Family of Tang Yeuk Chun, Deceased v. Sun Wing Hing Auto Engineering Service Co Ltd

DCEC 2377/2018

[2019] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2377 OF 2018

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Her Honour Judge Levy in Chambers (Open to Public)

Date of Hearing: 24 July 2019

Date of Decision on Costs: 24 July 2019

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DECISION ON COSTS

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1.This is an application by the applicant in relation to a fatal accident that happened to the deceased. The applicant is alleging that the respondent was the deceased’s employer at the time of the accident.

2.Liability of this case is disputed by the respondent, particularly in dispute is the employer-and-employee relationship. 

3.The applicant, in order to help investigate the identity of the employer and also the relationship between the applicant and the respondent, issued a summons against a Non-party, the Commissioner of Police. 

4.The summons was first heard on 21 June 2019.  At the hearing, the Non-party was absent despite having been properly served with the summons. The summons was adjourned until today’s hearing this afternoon. 

5.Quite apart from the absence of the Non-party, the adjournment of the summons would have been necessary due to the applicant’s non-compliance with the requirement of the provision of the Crown Proceedings Ordinance that requires proceedings against a government department should be against the Secretary for Justice and also be served on the Department of Justice.  I draw this statutory requirement to the attention of the applicant’s solicitors.

6.Hence, I directed the applicant’s solicitors to serve the summons on the Department of Justice. Today, Mr Chan of the Department of Justice appeared on behalf of the Non-party.

7.This summons for the production of 4 items of documents against the Non-party is in fact not opposed as Mr Chan consented to the production on behalf of the Non-party. After some streamlining of the wording of the discovery order, both parties submitted a draft consent order to this court. 

8.What remains now is the question of costs.  The applicant’s solicitor, Ms Siu, is seeking costs against the Non-party for the reason that before the summons was issued, the Non-party had, despite having been served with three letters of request by the applicant’s solicitors for the provision of the documents sought in the summons, completely neglected and ignored the applicant’s requests.

9.According to exhibit “SHL-5” to the affirmation of Siu Hiu-lui in support of the summons, the applicant’s solicitors, before the summons was issued, wrote on three separate occasions to the Commissioner of Police requesting for the same items of documents that are the subject matters of the summons. 

10.The first letter to the police was dated 5 July 2018.  In that letter, the applicant’s solicitors set out the facts of this case, and enclosed with the letter the requisite written authorisation given to the applicant’s solicitors for the making of the request for the documents. In the same letter, the applicant’s solicitors also set out the 4 items of documents that they wished the police to provide to them.

11.In addition to that, for fear that the police would refuse the production on the ground of a breach of the Data Protection Ordinance, the applicant’s solicitors in addition had referred in the same letter to 5 authorities in support of their request.  In that letter, the applicant’s solicitors also set out the handling solicitors’ contact phone number.

12.After that letter was sent, as obviously undisputed, the request was ignored. The applicant’s solicitors therefore sent, some 4 months later, on 5 November, another chaser. Again, that second letter was ignored.

13.After that, the applicant’s solicitors, again some 4 months later, sent on 12 April 2019, a third chasing letter for the documents.  In that third letter, the handling solicitors again set out the 4 categories of documents that they were seeking production of.

14.I was told, and this was not disputed, that despite these three letters, the applicant’s solicitors’ requests for these documents were completely ignored.  Because of this uncooperative attitude of the Non-party, the applicant’s solicitors issued the summons that I had just referred to above.

15.Ms Siu submitted that as a result of the attitude of the Commissioner of Police, the applicant had no choice but was forced to issue this summons. Hence, the Non-party, it was submitted, should pay for the costs of this summons.

16.Mr Chan, for the Non-party, conceded (quite rightly and properly, in my view) that the attitude of the Commissioner in the handling of this matter cannot be defended.  The police should have at the very least, passed the matter to the Department of Justice to seek legal advice even if they had decided to not respond to the requests.   Obviously, the Commissioner did not even do that. As confirmed by Mr Chan, the Department of Justice had no knowledge of this matter until it was served with the summons.

17.In my view, the Commissioner of Police was totally arrogant in having completely disregarded the three written requests that were made to him.  Even if he was not in a position to deal with this matter directly with the solicitors, he should have at least sought legal advice from the Department of Justice.  This he had failed to do.

18.For this reason, I agree with Ms Siu’s submission in stating that had the Commissioner of Police been more responsible, and dealt with these requests much earlier on instead of sitting on the applicant’s requests, this summons would not have been needed.

19.I agree with Ms Siu and am of the view that the summons was necessitated by the irresponsible behaviour of the Non-party. I therefore agree with Ms Siu that the Non-party should pay for the costs of this summons. 

20.My order for costs is therefore as follows, between the applicant and the Non-party: -

(1)  the Non-party do pay the applicant’s costs of and occasioned by this summons, to be taxed if not agreed;

(2)  insofar as the costs reserved on the last occasion were concerned, Ms Siu had conceded that there should be no order as to costs, and I so order.

21.I now deal with the costs between the applicant and the respondent.

22.This summons was issued as a result of the respondent’s dispute of the liability. For this reason, I consider that the costs should be in the cause, except that for the costs reserved on the last occasion, as Ms Siu had conceded, the applicant should pay for the respondent’s costs of that hearing.

23.So the costs between the applicant and the respondent should be in the cause, save and except that the costs reserved should be to the respondent, to be taxed if not agreed.

24.The applicant’s own costs in respect of these two orders should be taxed in accordance with the Legal Aid Regulation.

Ms K Siu of Hastings & Co for the applicant

Mr F H Leung of Wong & Co for the respondent

Mr Louie Chan, Government Counsel of the Department of Justice, for the Commissioner of Police (non-party)