Chin Tak Wai v. Harbour Concord Ltd

DCEC 1974/2020

[2021] HKDC 1313

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1974 OF 2020

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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:  20 September 2021

Date of Decision:  20 September 2021

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D E C I S I O N

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A.  Summons

1.Pursuant to Order 4, rule 9(1)  of the Rules of the District Court, the Harbour Concord Limited (“HarCon”), the respondent in these Employees’ Compensation proceedings (“EC proceedings”)  filed on 15 March 2021 a summons (“Stay Summons”), together with a supporting affirmation, for a stay of these proceedings pending the final determination of the civil action, DCCJ 1928/2019 (“DCCJ”), involving the same parties of these proceedings.

2.The Applicant in these proceedings, Chin Tak-wai (“Chin”), filed an affirmation on 6 May 2021 in opposition to this summons. 

3.Both HarCon and Chin are represented by counsel, respectively, Ms Wong and Mr Leung. 

B.  Related Actions

4.The underlying facts giving rise to the Stay Summons concern three related actions involving identical parties, by way of chronological order:

(1)  on 16 April 2019, HarCon filed and served a writ of summons with a statement of claim on Chin in the DCCJ, claiming damages for an amount of $438,000 in relation to alleged breaches of an implied contract;

(2)  on 14 June 2019, Chin filed a claim for unpaid annual leave in the Labour Tribunal under case number LBTC 1940/2019;

(3)  on 12 October 2020, Chin filed the EC proceedings in relation to an alleged accident on 28 October 2018 allegedly happened out of and in the course of the alleged employment with HarCon.  By an order dated 25 February 2021, the Labour Tribunal claim was stayed until the determination of the EC proceedings.

C.  Decision

5.The principles governing a court’s discretion to grant a stay of proceedings, are set out in the case of Poon Ka Man Jason v Cheng Wai Tao & Ors [2018] HKCFI 771, and its relevant passages were §§36 to 39 already set out in Ms Wong’s skeleton submissions.  For the purpose of the record, I will not read the whole passages but they will be set out in this decision.

“36. The Court has discretion, as a matter of case management, to grant a stay of proceedings generally or until a specified date or event: High Court Ordinance, Section 16(3); Order 1B, rule 1(2)(e)  of the Rules of the HighCourt (“RHC”).

37. Where, as here, the action was commended as of right, the court should only grant a stay when there are “very good reasons” and in “rare and compelling circumstance”. The stay must not cause injustice to the Plaintiff, and the Defendants must show that continuing the proceedings would be unjust to them. See Zhang Xiuhong v Liu Wenchen & Ors (HCA 2118/2012, 20 July 2017), §34, per Au-Yeung J, citing Ng J’s judgment in AIG Europe Ltd & ors v Fast-Link Express Ltd & ors (HCAJ 114/2014, 10 January 2017), §§9-13. The ultimate question is what would serve the ends of justice.

38. Exercise of discretion would involve balancing between (1)  possible wastage of Court’s time and resources and also parties’ time and costs (if there is no stay)  on the one hand and (2)  possible delay of the proceedings for a short period of time (if there is a stay on the other hand: see The Al Dhabiyyah [1999] 4 HKC 414, at p 420 A-F.

39. The court must bear in mind that the underlying objectives of the court is to increase cost-effectiveness of court proceedings; ensure that a case is dealt with as expeditiously as is reasonably practicable; promote reasonable proportion and procedural economy in the conduct of proceedings; and to facilitate settlement of disputes; Order 1A, rule 1(a), (b), (c), and (e)  of the RHC.”[1]

6.Applying these principles to this Stay Summons, after having considered the skeleton submissions and the submissions at the hearing today, I decline to exercise my discretion in favour of a stay. 

7.The reasons are as follows.

(1)  The trial for the EC proceedings will likely take place much sooner than the DCCJ.  In the DCCJ, presently the witness statements were already exchanged and filed, and I am also told that a case settlement hearing will be held very soon, which will be on 23 September 2021, which would shortly be followed by a Case Management Conference on 26 November 2021.  However, counsel is not able to assist this court as to when the DCCJ would likely be tried.

Conversely, for the EC proceedings, presently a Form 7 certificate of assessment issued by the Medical Assessment Board of the Labour Department was already filed with this court.  Counsel, Mr Leung, also confirmed at the hearing that Chin had accepted the assessment certificate and would not file any appeal.  There is no indication from HarCon that they would appeal against the Form 7.

In the circumstances, insofar as the EC proceedings are concerned, once the witness statements are filed and exchanged, the case is ready for trial.

Since the parties can refer to the same set of witness statements already served in the DCCJ, all they need to do is simply adapt the contents of those statements for the use of these EC proceedings.  I was told by counsel that Chin only requires two weeks; and HarCon four weeks to prepare the witness statements.

In other words, after a period of four weeks, the parties can then submit a joint written application for directions for the setting down of these EC proceedings for trial.  I am confident that the trial will likely take place within this year. On the other hand, the trial date for the DCCJ at the moment is uncertain.

(2)  Policy reasons.  I am in agreement with Mr Leung that the statutory objective of the EC regime of giving an injured employee quick and fast relief would require an expeditious disposition of these EC proceedings.  This is therefore made more compelling when there is a high chance of a much earlier trial for the EC proceedings than that of the DCCJ.

(3)  The issues of the EC proceedings are much more straightforward.  The issues for the EC proceedings which are set out by Mr Leung in his skeleton submissions are not in dispute and can be found in page 3, §7 of his written submissions.  I quote: “(1)  whether Chin was an employee of HarCon at the time of the accident and (2)  whether the accident on 28 October 2018 arise[sic] out of and in the course of the employment”.

8.By contrast, the alleged breaches in the DCCJ, in fact, involve two alleged incidents or breaches:  one of the incidents concerned the subject accident in the EC proceedings while the other alleged incident was on 19 October 2018, which absolutely has nothing to do with the EC proceedings.  Undoubtedly, therefore, more time and costs will likely be incurred for the resolution of these issues by the court in the DCCJ.  On the other hand, the issue in the EC proceedings are unquestionably much simpler. 

9.I therefore do not agree with Ms Wong’s submissions that it is necessary for a court to look at the whole picture of the DCCJ.  In my view, it is not costs saving or procedurally economical in requiring more costs to be spent in looking at the whole picture, when part of that picture does not assist with the determination of the EC proceedings.

10.The summons is therefore dismissed.

11.By consent, the Respondent do pay the Applicant’s costs of the summons with certificate for counsel. The costs are to be gross-sum assessed.

12.In doing the gross-sum assessment of costs, I think it is important just to look at the total amount as a whole in a rough and ready manner. The court will not engage in item-by-item taxation. 

13.When looking at the figure as a whole, I take the view that in fact the amount claimed is generally excessive, given the fact that it is an interlocutory application involving well-settled principles.  The issues are not particularly complex. Against this overall observation of the application, I would give my determination on each of the disputed items. 

14.For item C1: the attendance on lay client by the handling solicitor, Paul Yau. I will only allow one hour for the purpose of taking instructions as it is not a complicated case, bearing in mind that there are separate costs charged for the drafting and perusals. 

15.For the same reason that I have given above, I would allow five hours for item D1. 

16.Now, counsel’s fees are a little bit difficult.  I think for a case of this nature, as I have said, is not complex. I should state that, whilst I am grateful to the assistance rendered by Mr Leung to this court, when one looks at the overall proportionality, I am of the view that a reasonable sum for an application of this nature is of $40,000.

17.The parties do file a joint written application by 22 November 2021, allowing a longer window for directions for setting down for trial. Lastly, the costs of this application be in the cause. 

Mr Michael Leung, instructed by Tam, Pun & Yipp, for the applicant

Ms Wong Lok-yu Elyse, instructed by Ivan Tang & Co, for the respondent