Fan Lian v. Wong Ka Keung
Read the full judgment text of DCEC 710/2022 on BabelCite. This District Court judgment was delivered on 14 January 2025.
1. By a summons filed on 22 July 2024 (“ Summons ”), the Applicant (“ A ”) seeks to adduce the following additional 3 witness statements:
Cites 1 case
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DCEC 710/2022 [2025] HKDC 109 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 710 OF 2022 --------------------------
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-------------------------- REASONS FOR DECISION -------------------------- The Summons 1.By a summons filed on 22 July 2024 (“Summons”), the Applicant (“A”) seeks to adduce the following additional 3 witness statements:
2.The Respondent (“R”) opposes the Summons on the ground that the additional witness statements are irrelevant or of little probative value. Further, allowing A to adduce these witness statements at this late stage will cause prejudice to R given his old age, health concerns, the financial burden of added costs, etc. 3.In support of the Summons, A filed an affirmation in support on 6 August 2024, R filed an affirmation in opposition on 5 September 2024 and A filed an affirmation in reply on 30 September 2024. A’s case is that the contents of the 3 witness statements sought to be adduced are relevant and material. 4.This Court has read the written submissions of A’s counsel Mr Patrick Szeto and of R’s counsel Mr Leon Ho, and heard their submissions in court. Background 5.A claims in this action against R for employees compensation arising out of an alleged accident at work met by A that occurred on 29 May 2021. 6.A’s pleaded case is that when employed by R in carrying out plastering work at a residential address at Flat E, 25/F, Block 5, Bayview Garden, No. 633 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“Premises”), she fell from a stool and sustained injuries to her right wrist. 7.A’s evidence is that she was employed by R at a daily wage of $1,500. 8.R denies any employment relationship between A and R. His pleaded case is that R was merely a customer who engaged the Applicant’s services on a casual basis in carrying out renovation works at the Respondent’s own residence (the Premises). 9.R argues that A was an independent contractor who was engaged to work on project basis. For the project undertaken by A at the time of the alleged accident, the agreed project price charged by A was a lump sum of $30,000 for removing wallpapers and paining the walls, inclusive of materials to be purchased by A. 10.A filed her 1st and 2nd witness statements on the respective dates of 7 August 2024 and 23 November 2023 (“A’s WS2”). 11.R filed his 1st and 2nd witness statements on the respective dates of 7 August 2024 and 21 February 2024 (“R’s WS2”). 12.A seeks to adduce the 3 supplementary witness statements to deal with some allegations made in R’s WS2. Legal Principles on Adducing Supplementary Witness Statements 13.The governing test is neatly and precisely set out in Hong Kong Civil Procedure 2025 Vol 1 at O/38/2A/12 at page 957: A supplementary statement may be allowed to be served to give the witness of a party the chance to fill in gaps in his own statement or to answer the statement of the opposite party. The exercise of the court’s discretion, whether or not to allow supplementary witness statements, was the exercise of case management powers and an appellate court would be reluctant to disturb the case management powers exercised by the court below (Chan Wing Cheung v Ho Shu Yee [2005] HKEC 41). 14.Apart from these, reference should also be made to the legal principles governing witness statements as provided in O 38 r 2A of the Rules of the District Court that the contents of witness statements should be relevant to the issues in dispute and admissible, and that:-
15.Bearing the legal principles in mind, I now turn to the 3 disputed witness statements and consider whether leave should be granted for A to adduce them in this action. The 3 Witness Statements Sought To Be Adduced 16.R first mentions in R’s WS2 (para 8) a person by the name of Ah Ko (阿高) whom R engaged in renovation works and through whom R came to know A back in 2007. A was employed by Ko. 17.In R’s WS2 (para 17), R allegedly came to have notice on 31 October 2023 (through discovery by A) a renovation quotation in Chinese (entitled “荃灣傢俬報價”) (“Quotation”) in A’s records. According to R, the Quotation supports the defence case that A was an independent contractor working in renovation projects. 18.In R’s WS2 (paras 19 & 24), R seeks to challenge the credibility of A whose evidence in A’s WS2 (para 4) is that the works of laying of tiles in the Premises was still in progress by 26 to 27 May 2021. Seeking to contradict A’s case, R has produced photographs allegedly taken of the interior of the Premises on 19 and 23 May 2021 which show that the tiles laying works had already completed. 19.In A’s WS3 sought to be adduced under the Summons, A, specifically referring to paras 8, 17, 19 & 24 of R’s WS2, (i) explains the working relationship between A, Ah Ko and R; (ii) explains how the Quotation came about and that it was in fact prepared by another furniture contractor 李名山/Lee for R for the renovation undertaken at the Premises shortly before the accident to A; and (iii) adduces evidence of Liu who accompanied A in attending the Premises sometime in mid-June 2021 and noted that the flooring works status in the Premises had not yet completed, in support of A’s case and contradicting that of R. 20.Lee’s WS and Liu’s WS give evidence in support of A’s evidence on matters set out in (ii) and (iii) in para 19 above. Lee confirms that he was the person who prepared the Quotation which work was part of his business. Liu confirms that she attended the Premises accompanying A in mid-June 2021. She noted and can testify the state of the flooring works in the Premises – an issue raised by R in challenge of the credibility of A. Lee and Liu have personal knowledge of the matters stated in their witness statements. Analysis 21.The main issue of employment relationship between A and R in this case involves substantial disputes on fact. The credibility of A and R will be a material issue to be resolved. It is important for A to adduce evidence in answer to R’s evidence, particularly to those new matters raised in paras 8, 17, 19 & 24 of R’s WS2 outlined above. 22.It would be inappropriate for the parties to have to wait until cross-examination at trial for such evidence to be elicited as suggested by R’s counsel. An important function of witness statements, exchanged at the discovery stage, is to reduce surprises at trial. 23.I am satisfied that the evidence of A’s WS3, Liu’s WS and Lee’s WS should be allowed in order to give A the chance to deal with the matters raised in R’s WS2. They contain contents which are relevant, material, and necessary to fill in gaps in A’s evidence and to answer the statement of the opposite party. 24.I do not accept the submissions of R’s counsel Mr Ho that allowing A to adduce these 3 witness statements will cause further delay of trial and prejudice to R given his old age and health concerns and in the context of financial burden. 25.On the other hand, this Court is of the view, and both counsel agree, that this case should be ready for setting down for trial whether leave is granted or refused under the Summons. No further delay of trial will therefore be caused in allowing A’s application under the Summons. 26.No prejudice to R is demonstrated. Disposition 27.Leave is granted to A to adduce the 3 witness statements as sought in the Summons. 28.I refuse the request of D’s counsel for granting leave for R to file further witness statement(s) in reply, if so advised/necessary, to the 3 witness statements allowed by this order to be adduced, for this will fall into a never-ending cycle of exchanging witness statements, as submitted by D’s counsel in opposing the Summons. 29.Granting blanket leave for adducing further evidence without sight or consideration of such evidence is in my view wholly inappropriate in the circumstances. In any event, the 3 new witness statements were sought to be adduced by A in answer to new matters raised by R; I see no reason why R should be allowed to have a second go to give further evidence on those matters raised by him. 30.On costs, parties are agreed and I order that:
31.This Court also gave directions for setting down for trial at the hearing after dealing with the Summons. 32.Lastly, I thank counsel for their assistance.
Mr Patrick Szeto, instructed by Or & Lau, assigned by the Director of Legal Aid, for the applicant Mr Leon Ho, instructed by Robertsons, for the respondent | ||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCEC 710/2022