Wong Ka Chun v. Siu Wah Transportation Ltd

DCEC 2547/2022

[2025] HKDC 1292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2547 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION

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1.This is scheduled to be the trial of the captioned proceedings.  This dispute arises out of the alleged personal injury suffered by the Applicant in an accident on 15 December 2020, arising out of and in the course of the employment by the Respondent. At the time of the accident, the Applicant was working as a delivery worker. When the Applicant was operating a pallet truck inside the lorry, the pallet truck lost control and crushed him.  The Respondent denies that the Applicant was employed by it.

2.There are two other applications before me, namely: (1)  the Applicant’s application dated 18 June 2025 for leave to amend the Application filed on 13 December 2022 (“Amendment Application”)  and (2)  the Respondent’s application dated 14 July 2025 to seek to have this trial adjourned (“Adjournment Application”). I will deal with these applications below.

A.   The Amendment Application

A1.  The lateness of the application

3.First, I note that this application was taken out by the Applicant very late and has the likely effect of jeopardising the trial dates of these proceedings.

4.Lateness without explanation itself is a ground to refuse late interlocutory applications. The applicant for leave must establish, by affidavit evidence, exceptional circumstances to explain and justify the delay: Hong Kong Changyi Real Estate Development Limited v Neo-China (Group)  Infrastructure Investment Limited & Anors, unreported, HCA 1576/2011, 25 February 2014 at §1 per Mimmie Chan J. The prejudice to the other party is particularly serious when a milestone date is likely to be jeopardized: Credit One Finance Ltd v Leong Wun Heng[2019] 4 HKLRD 591 at §14.

5.In the present case, I note, however, that the Respondent does not object to any adjournment. Quite the contrary, the Respondent took out its own application to have the trial adjourned. Any potential prejudice to the trial dates should be considered with that in mind.

6.By the Amendment Application, the Applicant seeks leave to add and include an alternative basis of liability against the Respondent. In addition to seeking to claim against the Respondent as his employer, the Applicant now also claims that the Respondent should be liable as a principal contractor under section 24(1)  of the Employees’ Compensation Ordinance (Cap 282)  (“Ordinance”). The relevant new pleas are pleaded in the Amended Application in §§1(b)  & 3(3)  as underlined:-

“Alternatively, at all material time 李錦林 also known as 家希阿叔 was a sub-contractor within the meaning of the Ordinance to a principal contractor within the meaning of the Ordinance namely the Respondent.”

“On 15^th December 2020, in the course of his employment with the Respondent, or alternatively, with 李錦林 also known as 家希阿叔 who was the sub-contractor of the Respondent, the Applicant was delivering goods at near Ping Che Road, FLG3/FLG3; Chiu Lik Company ˃ Chin Shing. When he was operating a pallet truck inside the lorry, the pallet truck lost control and crushed him. As a result, he sustained injuries.[1]”

7.In the Affirmation in support of this application, the Applicant explained that he previously worked with 家希阿叔 but did not know his full name or that he might be a sub-contractor of the Respondent. In January 2025, in one of the Respondent’s witness statements (ie the witness statement of 李錦君), it was revealed that the delivery work was sub-contracted to a 李錦林 (“Lee”), who used one of the Respondent’s lorries.

8.On 17 June 2025, in a letter from Messrs Cheng, Yeung & Co, the solicitors acting for the Employees Compensation Assistance Fund Board (“Board”)  to the Applicant’s solicitors, correspondence between the Board and the Respondent was enclosed by which the Respondent confirmed that the identity of 家希阿叔 was in fact Lee. The relevant part of the said letter reads as follows:-

“Upon our enquiries, the Respondent has confirmed that 李錦林 had been the driver of WF9341 during its contract with 李錦林 and he was the driver of WF9341 on the date of the alleged accident. In light of your client’s case that he was riding on WF9341 on the date of the alleged accident, it is not difficult to conclude that 家希阿叔 was in fact 李錦林.” (emphasis added)

9.The Amendment Application was taken out on 18 June 2025, the very next day after the said letter from Messrs Cheng, Yeung & Co. It is the Applicant’s stance that the said letter has prompted him to make the Amendment Application, based on the new information revealed therein.

10.The Respondent disputes that the Applicant only learned of the new information on 17 June 2025. The Respondent suggests that, by reason of the witness statement of 李錦君, at least in January 2025, the Applicant had already known of the full name of the driver of the relevant vehicle and that Lee was a sub-contractor of the Respondent.  The Respondent argues that the Applicant should have taken out this application in January 2025, rather than in June 2025.

11.I disagree with the Respondent. First, the witness statement of 李錦君 underwent an amendment very recently on 23 June 2025. In the un-amended version dated 16 January 2025, in §3, the Respondent’s witness states that the Respondent had ended its co-operation with Lee in March 2020, ie before the date of the accident. Hence, a fair reading of this witness statement cannot lead to any reasonable conclusion that 家希阿叔 was in fact Lee.

12.The witness statement of 李錦君 was later amended on 23 June 2025 by which the said co-operation between the Respondent and Lee is alleged to have ceased only on 31 December 2020, ie after the date of the accident.

13.At the hearing, the Respondent refers me to some documents (ie invoices issued by the Respondent to Lee until December 2020)  by which the Respondent suggests that the Applicant should have known that their co-operation had not ended in March 2020.

14.I do not think that this is a fair submission. First, these documents do not reveal any sub-contractor relationship between Lee and the Respondent. To the contrary, it shows that Lee was an employee of the Respondent and had received “salaries”. Second, this argument effectively means that the Applicant should have performed his own investigation work to find out and correct a mistake contained in the Respondent’s own witness statement.

15.The Respondent also suggests that the Applicant should have contacted Lee himself and if he had done so, he would have known about the sub-contractor relationship earlier. This submission is, with respect, speculative as there is no basis to suggest that Lee would have confirmed himself to be a sub-contractor of the Respondent.

16.Given the aforesaid, I am satisfied that the earliest that the Applicant could have applied to amend the Application was after the receipt of the letter on 17 June 2025 from Messrs Cheng, Yeung & Co. Therefore, while this application was made very late in the days, there is a legitimate reason explaining the late introduction of this alternative case.

A2.  The lack of notice under section 24(6)  of the Ordinance

17.The Respondent further objects the proposed amendment on the basis that it is premature and thus defective for the failure to serve the notice required under section 24(6)  of the Ordinance, which reads as follows:-

“An employee shall, before making any claim or application by virtue of this section against a principal contractor, serve on the principal contractor a notice in writing stating—

(a)  the name and address of the employee;

(b)  the name and address of the sub-contractor by whom he is employed;

(c)  the address of the place of employment of the employee;

(d)  the particulars of the accident and the injury suffered; and

(e)   the amount of compensation to be claimed.”

18.Section 24(6)  and its interaction with section 24(7)  of the Ordinance were considered by the Court of Appeal in Wong Leung Tak v Wong Lee (Brothers)  Transportation Company Limited, unreported, CACV 151/1989, 30 March 1990 in which the following paragraphs at §§55-57 are illustrative:-

“… Under section 24(6)  an employee is required, before making any claim or application under section 24 against a principal contractor, to serve him with a notice giving the information stipulated in that provision, which includes the name and address of the employer sub-contractor and the amount of the compensation claimed. Under section 24(7)  of the Ordinance a principal contractor against whom a claim or application is made by an employee under section 24 is required to give notice thereof to the sub-contractor specified in the section 24(6)  notice who is "thereupon entitled to intervene in any application made against the principal contractor".

The notice provision contained in section 24(7)  is picked up by rule 22(1)  of the Employee's Compensation (Rules of Court)  Rules which requires that a notice, presumably under section 24(7), to a sub-contractor of a claim or application for compensation made against the principal contractor shall be in Form 10, which is a simple form giving notice of the claim and making no reference to a claim for indemnity by the principal contractor against the employer. Rule 22(1)  goes on to provide that if the employer sub-contractor to whom such notice is given desires to intervene he is required forthwith to lodge with the registrar of the court and serve on the applicant and the principal contractor a notice, in Form 11, that he so intervenes.

Having so intervened, the sub-contractor is required to lodge an answer to the application in accordance with rule 22(2)  and under rule 22(3)  the court may on the hearing of the application, if satisfied that he is entitled to intervene, order that the sub-contractor be made a respondent.”

19.That decision, however, has not discussed or spelled out the consequence (if any)  as to the failure for the applicant to serve the notice pursuant to section 24(6).

20.The Applicant has referred me to the decision in 譚國武 v 三星電子香港有限公司 & Anors [2021] 1 HKLRD 142 in which the consequence of a failure to serve the notice under section 24(6)  was discussed. In that case, having reviewed the legislative purpose behind this section, the Court held (and I summarise)  as follows:-

(a)  Under section 24(6), there is no time limit stipulated for the giving of a notice to the principal contractor.  

(b)  Section 24 is to provide a procedural mechanism to enable a principal contractor, which/who shall be severally liable to pay compensation to the employee, to intervene in proceedings an employee brought against the employer.  Hence, it is important for the principal contractor to have notice of the proceedings under section 24(6)  if the former is not a party to the proceedings so that the principal contractor can rely on section 24(7)  and rule 22(1) of the Employees’ Compensation (Rules of Court)  Rules (together with its prescribed Form 10) to apply to intervene.

(c)  The failure to comply with section 24(6)  will not make the employee’s claim unmaintainable.

(d)  Further, under the deeming provision of section 14(3)  of the Ordinance, a notice (whether written or oral)  given “to an employee employed by a sub-contractor” or “to any foreman or other official … shall be deemed to be notice to the principal contractor”.

(e)  In that case, the applicant’s issuance of the joinder application was regarded by the court as the giving of the notice under section 24(6).

21.At the hearing, I enquired with the Respondent whether it could produce any other authorities contradicting 譚國武 v 三星電子香港有限公司 & Anors, supra. The Respondent replied in the negative but sought to distinguish that decision from the present. Despite his efforts, I find the observations therein equally applicable to our case.

22.I agree with the analysis in 譚國武 v 三星電子香港有限公司 & Anors, supra. The lack of a formal written notice under section 24(6)  of the Ordinance in itself should not render the Applicant’s proposed amended claim premature or defective. In any event, the Respondent is already a party to these proceedings. The Respondent has knowledge and notice of the alternative claim now made by the Applicant against it. The lack of formal written notice served under this section has not given rise to any prejudice to the Respondent. If necessary, I also find that the Amendment Application by itself qualifies as sufficient written notice for the purpose of section 24(6)  of the Ordinance.

23.Therefore, there is no merit in this objection by the Respondent.

A3.  Conclusion on the Amendment Application

24.Having found that the Applicant has provided a good explanation regarding the lateness of the Amendment Application and having rejected the Respondent’s argument that the proposed amendment is premature and thus detective, I am also satisfied that the amendments are necessary to enable the real questions and controversy between the parties to be decided.

25.In the present case, the role and involvement of Lee and his relationship with both the Applicant and Respondent are crucial and it will shed light on whether the Respondent should be liable to pay employee compensation to the Applicant under the Ordinance as an employer or as a principal contractor.

26.Further, as noted above, although allowing the proposed amendments is likely to affect the trial dates (a matter to be further addressed below), it cannot be said that the Respondent will suffer any serious prejudice as the Respondent is also seeking an adjournment by its Summons.

27.Having balanced all the factors, I exercise my discretion to allow the Amendment Application.

B.   The Adjournment Application/Whether the trial can still proceed?

28.Having granted leave for the Applicant to amend the Application, it appears to me that it is in the interest of justice that the trial of these proceedings should be adjourned. I bear in mind that trial dates being milestone dates should not be adjourned or varied save and except under exceptional circumstances. I find that such circumstances exist in the present case.

29.First, leave should be granted to the Respondent to amend its Answer to make any corresponding changes. Given that the new amendment made by the Applicant represents a major shift of case against the Respondent (by the addition of an entirely new alternative case). The Respondent should be given sufficient time to formulate its response and amend its Answer accordingly. It would not be fair to the Respondent to ask it to rush to formulate its case in the course of this 2-day trial.

30.Second, now that the Applicant has prayed in aid of section 24(1)  of the Ordinance, time should be given for the Respondent to decide whether to give notice pursuant to section 24(7)  of the Ordinance which reads:-

“Where a claim or application is made by virtue of this section against a principal contractor, the principal contractor shall give notice thereof to the sub-contractor specified in the notice served on the principal contractor under subsection (6), who shall thereupon be entitled to intervene in any application made against the principal contractor.”

31.I note that the service of such a notice may further give rise to an intervening application by the sub-contractor.

32.Third, given the new alternative case now raised by the Applicant, the parties will need further time to consider and, if necessary, adduce factual evidence to address such matters, which may lead to further witness statements or further discovery from the parties.

33.In these circumstances, it appears to me that the proper course is to have the trial of these proceedings adjourned to allow time for, inter alia, the aforesaid to happen (if so advised).

C.   Costs

34.Today result is that I grant both applications made by the parties. I would not have granted any adjournment of the trial proceedings but for the Amendment Application. Hence, both summonses are in that sense linked together and their costs order should be considered in one go.

35.Although leave to amend is granted, there is no denying that that application was made very late. The Applicant is seeking indulgence of this Court to allow this very late application. That said, the said lateness is partly attributable to the mistake made in the Respondent’s witness statement, which was only rectified very recently in June 2025. It can thus be said that both parties are partly at fault leading to the present situation.

36.Considering all the circumstances, the proper costs order should be that there be no order as to costs in respect of both applications.

D.   Orders/Directions

37.I grant the following directions today:-

(a)  The Applicant do have leave to amend the Application filed on 13 December 2022 as shown in red as appears in the draft Amended Application annexed to the Applicant’s Summons dated 18 June 2025 and as further corrected orally by the Applicant at the hearing on 30 July 2025;

(b)  The Applicant do file and serve the Amended Application within 7 days from today;

(c)  The Respondent do have leave to file and served its Amended Answer within 21 days thereafter;

(d)  The costs of and occasioned by the amendment be to the Respondent, to be taxed if not agreed;

(e)  The trial of these proceedings be adjourned to a date to be fixed with 2 days reserved;

(f)  The second trial day on 31 July 2025 be vacated; and

(g)  There be no order as to costs in respect of both summonses including the costs of this hearing.

Mr I Chan, of John W Wong & Co, for the applicant

Mr Sousa Richard Alvaro, of Chan, Lau & Wai, for the respondent