Leung Sau Kuen v. Alliance Security Ltd and Another

DCPI 2735/2022

[2026] HKDC 640

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2735 OF 2022

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BETWEEN

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DECISION

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INTRODUCTION

1.This case has been fixed for trial on 22 June 2026 with 4 days reserved.  Although the trial is only about three months away, there are two interlocutory applications before the Court.

2.The first, listed for substantive argument with 2 hours reserved, is the 2^nd Defendant (“D2”)’s summons dated 11 June 2025 under Order 14A seeking determination of the following question (“O.14A Application”):-

“Whether the failure by the employer or the occupier to provide the Plaintiff a remote control for the air conditioner to adjust the room temperature in the breakroom at the Penny’s Bay Quarantine Centre and/or failure to post any warning notice to warn of the potential danger of standing on a chair amounted to a breach of s.3 of the Occupiers Liability Ordinance, Cap. 314, s.6(1)  and/or s.7(1)  of the Occupational Safety and Health Ordinance, Cap. 509” (“D2’s Question”)

3.Mr Thomas Nip, Counsel for the Plaintiff (“P”), and Mr Francis Chung, Counsel for the 1^st Defendant (“D1”), both oppose the O.14A Application.  They submit that D2’s Question is not a pure question of law, but is interwoven with factual issues, and is therefore not suitable for determination without a full trial.  They further submit that a determination of D2’s Question will neither avoid the trial nor produce any substantial saving in costs.

4.The second application, listed for 3 minutes, is P’s summons dated 16 February 2026 seeking leave to amend the Amended Statement of Claim (“Amendment Application”).  Mr Chung confirms that D1 does not oppose the Amendment Application whereas Ms Bianca Yu, Counsel for D2, indicates that D2 opposes it.

BACKGROUND

5.At the material time:-

(a)  D1 was engaged by the Department of Health to provide security services at Penny’s Bay Quarantine Centre (“Centre”);

(b)  P was employed by D1 as a security guard and deployed to work at the Centre; and

(c)  Civil Aid Service (“CAS”)  was the manager of the Centre.

6.On 9 September 2020 at about 4:30 am, P went into a resting room (“Room”)  in the Centre to take a nap. She felt that the Room was too hot and humid, and decided to adjust the air-conditioner (“AC”).  As the AC was installed at a height of around 1.9 metres and there was no remote control in the Room, P stood on a chair (“Chair”)  to reach the control panel.  When she stepped on the top of the Chair, it moved because of the unequal length of its legs and slipped further on the wet floor.  P fell to the ground and sustained injuries (“Accident”).

7.P now claims damages against D1 and D2 for the injuries sustained in the Accident.  As pleaded in the Amended Statement of Claim (“ASOC”):-

(a)  P’s claim against D1 is founded on (i)  negligence; (ii)  breach of implied terms in the contract of employment; and (iii)  breach of statutory duty under section 6(1)  of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”);

(b)  P’s claim against D2 is based on (i)  section 3 of the Occupiers Liability Ordinance (“OLO”); and (ii)  section 7(1)  of OSHO; and

(c)  The only case-specific particulars pleaded in the ASOC are: (i)  failure to provide a remote control; and (ii)  failure to post warning notices in the Room warning against the potential danger of standing on a chair.  The particulars as pleaded do not specifically refer to the Chair.

8.Both Defendants deny liability. In essence, D1’s case is that:-

(a)  It did not have control over or access to the whole of the Centre.  Its staff were only permitted to enter and use those areas (including the Room)  that had been designated by D2 for the performance of D1’s contractual duties.  The responsibility for providing a remote control to the AC in the Room lay with D2;

(b)  P was resting in the Room and was not performing her work duties at the time of the Accident.  She stood on the Chair to reach the AC control panel on her own initiative and for her own personal comfort, not in the course of her employment.  The Accident was caused, at least in part, by her own negligence; and

(c)  The Accident was also caused or contributed to by the negligence and/or breach of statutory duties, ie section 3 of OLO and section 7(1)  of OSHO, on the part of D2.  D1 specifically pleads that D2 had provided a defective chair with unequal leg length (ie the Chair).

9.D2 admits that CAS deployed its officers to act as the manager of the Centre.  Its case is that:-

(a)  The Room was one of the prefabricated units allocated to various contractors, including D1, for use as storerooms, and was also used as a standby room by D2;

(b)  Contractors had non-exclusive access control to their respective allocated units, such that the usage and access control of the Room were the responsibility of D1 and/or its employees. CAS staff would not enter contractors’ units or interfere with the contents unless there was operational need.  Therefore, D1 was the occupier of the Room and responsible for its maintenance;

(c)  Some 700 sets of AC remote controls were available for use at the Centre.  They were kept in the Centre’s storeroom and were available for use by D1’s security guards, including P; and

(d)  The Accident was caused or contributed to by P’s own negligence as well as by the negligence, breach of contract and breach of statutory duties on the part of D1.  D2 adopts P’s particulars of negligence and breach against D1.

10.As between D1 and D2, each seeks indemnity or contribution from the other in the event of being held liable to P.

11.In the contribution proceedings, D2 adopted D1’s Defence to the ASOC as D1’s Statement of Claim and filed a Defence and Counterclaim accordingly. Thus, D1’s claim against D2 is based not only on breach of statutory duties but also on negligence, and relies, inter alia, on the allegation that D2 had provided the defective Chair; see §8(c)  above.

12.On 11 June 2025, D2 took out the O.14A Application.

13.On 16 February 2026, being more than 8 months after the O.14A Application and less than one month before its substantive hearing, P took out the Amendment Application seeking, inter alia, to:

(a)  Add a new cause of action in OLO against D1;

(b)  Add a new cause of action in negligence against D2; and

(c)  Add new particulars of negligence and breach of OLO and OSHO on the part of D1 and D2 concerning the defective Chair.

14.D2 has not filed any affirmation in opposition to the Amendment Application.

APPROACH TO THE TWO APPLICATIONS

15.Mr Nip invites the Court to determine the Amendment Application first.  He submits that, if leave to amend is granted, P will, in addition to the existing statutory claims under OLO and OSHO, also pursue a negligence claim against D2 with new particulars regarding the Chair, which are factually disputed.  The outcome of the Amendment Application would therefore have a direct bearing on the O.14A Application.  He points out that the Amendment Application was issued on 16 February 2026 and that D2 has ample time to file an affirmation in opposition if it wishes to do so. In those circumstances, he submits, the Court can and should proceed to determine the Amendment Application notwithstanding that only 3 minutes are reserved.

16.Ms Yu strongly opposes that course.  She submits that Mr Nip’s proposal effectively allows P to “hijack” the O.14A Application by the Amendment Application.  She argues that it would be inappropriate and unfair for the Court to determine the Amendment Application when D2 has not yet had a proper opportunity to put in evidence in opposition.

17.I agree with Ms Yu.  It would not be fair to determine the Amendment Application without allowing D2 a reasonable opportunity to file an affirmation in opposition and to prepare for substantive argument on that application.

18.As I am not in a position to deal with the Amendment Application right away, I ask Ms Yu whether D2 would consider adjourning the O.14A Application to be heard together with the Amendment Application.

19.Ms Yu replies that D2 does not wish to take that course.  She submits that, as all parties have prepared for the O.14A Application, the Court should proceed to hear the arguments and determine the application.  It will then be a matter for P to consider its position on the Amendment Application depending on the Court’s determination on the O.14A Application.

20.With the agreement of Mr Nip and Mr Chung to Ms Yu’s approach, I proceed to hear the substantive arguments on the O.14A Application.

LEGAL PRINCIPLES FOR ORDER 14A

21.O.14A rule (1)  of the Rules of the District Court provides that:-

“The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that:-

(a)  Such question is suitable for determination without a full trial of the action; and

(b)  Such determination will finally determine (subject only to any possible appeal)  the entire cause or matter or any claim or issue therein”.

22.There is no dispute that, when seized of an application under O.14A, the Court takes a three-step approach as follows:-

(a)  Step 1:  Is the relevant question one of law or of the construction of a document?

(b)  Step 2:  If so, is that question one that should be determined under the O.14A procedure?

(c)  Step 3:  If so, what is the determination of that question and what orders should the Court make as a consequence of determining that question?

See Hong Kong Civil Procedure 2026 §14A/2/4.

23.In Rockwin Enterprises Ltd v Shui Yee Ltd [2003] 3 HKC 173, Recorder Ma SC (as he then was)  held that the Court retained a residual discretion whether or not to embark on a determination of a question under O.14A even where the first two requirements under O.14A(1)  were satisfied; namely (a)  the question of law or construction was one that was suitable for determination without a trial; and (b)  it would finally determine (subject to a possible appeal)  the entire cause or matter or any issue or claim therein.  As to how that residual discretion should be exercised in any given case would depend on the circumstances and the perception and instinct of the judge seized of the matter.  However, it must be emphasized that the residual discretion only became exercisable where the two requirements under O.14A(1)  had been fulfilled. The Court must be satisfied that it had all the necessary facts and matters before it in order to determine the question of law or construction.

24.The circumstances relevant to the Court’s consideration whether to allow an application for a determination under O.14A would be (a)  that the question of law or construction was a dominant feature of the case; (b)  if the question of construction was dealt with, this might or would enable the parties to avoid the expense of trial and assist them in the efficient disposal of the action.  The Court could also take an overall view of the matter to see the context in which the question arose.  If the Court was of the view that there would not be a great saving of time or costs in determining the question, this would be a factor against adopting the procedure.  On the other hand, an issue might recur so much on a continuing basis that to determine it might not only be convenient but extremely desirable.

WHETHER D2’S QUESTION IS A QUESTION OF LAW

25.Ms Yu submits that D2’s Question is suitable for determination without a full trial of the action because there is no factual dispute that there was no remote control in the Room for adjustment of the room temperature, and there was no warning sign to warn of the dangers of standing on a chair at the material time.  The key issue in the present case as between P and D1 and between D1 and D2 is whether, on such factual matrix, D2 would have liability under section 3 of OLO and section 7(1)  of OSHO. This is evidently a legal question, and the determination of which would, if in D2’s favour (which would benefit D1), dispose of the entire cause of action between P and Ds, and between Ds themselves.

26.With respect, I do not accept Ms Yu’s submissions. 

27.Section 3(2)  of OLO provides that:-

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” (emphasis added)

28.Section 6(1)  of OSHO provides that:-

“Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees” (emphasis added)

29.Section 6(2)(a)  of OSHO provides that:-

“The cases in which an employer fails to comply with subsection (1)  include (but are not limited to)  … a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health” (emphasis added)

30.Section 7(1)  of OSHO provides that:-

“If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that (a)  the premises; and (b)  the means of access to and egress from the premises; and (c)  any plant or substances kept at the premises, are, so far as reasonably practicable, safe and without risks to health.” (emphasis added)

31.It is evident from those provisions that breach of the statutory duties under OLO and OSHO turns on what is “reasonable” and “reasonably practicable” in “all the circumstances of the case”.  As Deputy District Judge Gary CC Lam (as he then was)  explained in Sit Kan Tat v World-Class Talent Ltd [2024] HKDC 420 at §53, relevant considerations include: (a)  the likelihood of the occurrence of the event causing damage; (b)  the proportionality of the costs and expenses of preventive measures when weighed against the risk; and (c)  the difficulty in eliminating or reducing the risk.  Each of these considerations is intrinsically fact-sensitive.

32.In this regard, I bear in mind the guidance in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003)  6 HKCFAR 222 and Wong Sau Kam Yeung Kon v Shum Yuk Fong, HCPI 798/1998, 28 January 2000, where it was emphasized that the Court should be slow to determine questions of law in vacuo where the legal and factual issues are interwoven and the relevant factual matrix has not yet been fully established by evidence.  Those authorities reinforce the point that O.14A is not intended to permit abstract rulings divorced from the concrete facts which define the scope and content of the duty in issue.  That is precisely the situation here.  As will be seen below, D2’s Question cannot be properly answered without first resolving a number of disputed factual issues, and to determine it now would be to give a ruling in vacuo.

33.Ms Yu nevertheless argues that, as a matter of law, there is a clear distinction between the “occupancy duty” and “activity duty”, and that occupiers’ liability is concerned only with dangers arising from the state of the premises, but not from activities carried out on them. 

34.She submits that in the present case the danger arose solely from P’s activity in standing on the Chair, and had nothing to do with the state of the Room.  On that basis, she contends that OLO has no application.  If the Room was not unsafe within the meaning of OLO, P’s statutory claim against D2 and D1’s contribution claim based upon it must fall away.  She relies on the House of Lords decision in Tomlinson v Congleton Borough Council [2003] UKHL 47 and the Hong Kong decision in Lam Man Lee v Beach Action Consultancy Co Ltd, DCPI 1996/2014, 11 November 2016. 

35.With respect, I do not agree. Section 2 of OLO makes clear that occupiers’ statutory duties are not confined to “dangers due to the state of the premises”, but also extend to “dangers due to … things done or omitted to be done on them”.

36.In Tomlinson, the 18-year-old plaintiff suffered catastrophic spinal injury after diving into a lake and striking his head on the sandy bottom.  He sued the occupiers of the lake for breach of statutory duty.  It was accepted that he was a trespasser, as swimming was prohibited and there were “Dangerous Water. No Swimming” signs at entrance and elsewhere.  The plaintiff argued that the danger was due to “things done or omitted to be done” on the premises, namely the attraction of the lake and the defendants’ inadequate efforts to keep people out of the water.  The House of Lords rejected that argument. Lord Hoffmann held at §28:

“In my opinion “things done or omitted to be done” means activities or the lack of precautions which cause risks”

37.In Lam Man Lee, the plaintiff fell while using a balance trainer (ie indo board).  There was no dispute that the board itself carried a warning.  Deputy District Judge Winnie Tsui (as she then was)  held that the board was not a dangerous piece of equipment and rejected the claim under OLO, finding that the danger arose from the way the plaintiff used the equipment and could not be attributed to “things done or omitted to be done” by the occupier.

38.It is worthy to note that both Tomlinson and Lam Man Lee were decided after full trial with factual findings as to the nature of the premises, the activities in question and the parties’ knowledge and choices.

39.Ms Yu submits that P cannot invoke the “things done or omitted” limb because the danger was generated by P’s own act of standing on the Chair and not by any omission on D2’s part in failing to provide a remote control or post a warning.

40.In my view, her submissions take too narrow and restrictive a view of occupiers’ liability.  In Bhana v Ocean Apex Trading Ltd [2010] 6 HKC 209, the plaintiff, a customer in a boutique, tripped when her leg caught the leg of a passing shop assistant.  District Judge Mimmie Chan (as she then was)  held that:-

“13. There is therefore no question of a guarantee of safety for visitor. What is required is for an occupier to have in place a proper and adequate system to provide for the safety of its visitors. S3 of the Ordinance provides that an occupier of the premises owes a common duty of care, to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. S2 of the Ordinance expressly provides that the rules enacted by s3 of the Ordinance shall have effect to regulate the duty which an occupier of premises owes to its visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

14. Ms. Bhana and other visitors to the Shop were clearly invited or permitted by Ocean to be there in the Shop to browse and to purchase items on display in the Shop. Clearly, the Ordinance has application to Ocean’s operation and management of the Shop, should ‘dangers’ arise due to things done or omitted to be done on the premises. The ‘dangers’ need not be confined to the state or condition of the premises, but can be the result of the manner of operation and management of the premises.” (emphasis added)

41.Against the background of the present case, whether D2’s alleged failures, namely not providing a remote control in the Room and/or not posting a warning against standing on a chair, constitute “things done or omitted to be done” which gave rise to liability under OLO is ultimately a question to be answered at trial after all the evidence has been heard, just as in Tomlinson and Lam Man Lee.

42.I agree with Mr Nip and Mr Chung that the absence of a remote control and warning sign cannot be examined in isolation when determining whether D1 or D2 was liable under OLO and/or OSHO. The Court must also consider, among other things:-

(a)  Whether, as P alleges, the Room was habitually hot and humid and its floor frequently wet, and, if so, whether D1 and/or D2 knew or ought to have known of that condition;

(b)  Whether, as P alleges, she and her colleagues had adopted the practice of standing on chair to adjust the AC manually, and, if so, whether D1 was aware of that practice;

(c)  Whether D1 or D2 or both of them was/were the occupier of the Room?

(d)  Whether, as D2 alleges, remote controls were available in the Centre’s storeroom and could be requested for use, and whether this arrangement was explained to and known by P; and

(e)  Whether, as D2 contends, P voluntarily assumed the risk in standing on the Chair, such that no liability arises on the part of D1 and D2.

This list is not exhaustive, but these issues will plainly have a bearing on whether a remote control ought reasonably to have been provided, whether a warning ought reasonably to have been posted, and whether failure to do so constitutes a breach of statutory duties under OLO and/or OSHO.

43.As to Ms Yu’s argument on “volenti non fit injuria”, the question whether P “voluntarily assumed the risk” in any relevant sense is inevitably a fact-sensitive one, turning on matters such as the availability of alternatives, the system of work, and the extent of her knowledge.  It also bears emphasis that, even if some degree of risk-taking were ultimately established, that may at most go to contributory negligence rather than completely extinguishing any duty owed under OLO or OSHO.  These are questions more properly left to the trial judge than determined in limine under O.14A.

44.For these reasons, I am not satisfied that D2’s Question is a pure question of law suitable for determination under O.14A without a full trial.

WHETHER DETERMINATION WOULD SAVE TIME AND COSTS

45.Ms Yu submits that, if D2’s Question is answered in D2’s favour, that would finally determine the entire cause or matter not only between P and D2, but also between P and D1 and between D1 and D2, relying on section 3(6)  of the Civil Liability (Contribution)  Ordinance, Cap 377 (“CLCO”).

46.Section 3(6)  of CLCO provides that:-

“A judgment given in any action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.” (emphasis added)

47.As noted above, D2’s Question only covers D1 and D2’s liability under OLO and OSHO.  However, P’s claim against D1, as pleaded in the ASOC, is not just confined to statutory duties under OSHO but also includes a negligence claim.  Although P’s claim against D2 in the ASOC is presently limited to OLO and OSHO, D1’s contribution claim against D2 includes a negligence claim relying, inter alia, on the alleged provision of a defective Chair.  Those matters fall outside D2’s Question and will remain to be adjudicated even if D2’s Question is answered in D2’s favour, and in substance the same factual evidence will still be required to be adduced at the trial.  In other words, there is no substantial saving in costs and time at the trial.

48.I would add that P has issued the Amendment Application seeking to introduce a negligence claim against D2 and to plead further particulars relating to the alleged defective Chair.  Whilst I have declined, for reasons of fairness, to determine that application at the hearing on 13 March 2026, its very existence underlines that, even a determination of D2’s Question in D2’s favour would not finally determine all live or proposed issues between P and D2 or between D1 and D2.

EXERCISE OF DISCRETION

49.Even if I were wrong on suitability and D2’s Question could in principle be determined without a full trial, I would still have to consider whether, as a matter of discretion, it is appropriate to do so in the present circumstances.

50.The O.14A Application was taken out in June 2025, more than 2½ years after D2 was joined in November 2022.  By the time of the O.14A Application, the preparation of the case had been completed and the parties had by a consent summons sought leave to set down. For various reasons, it takes some 9 months before the Court has the opportunity to hear the substantive arguments.  Whilst there is no suggestion that any of the parties is at fault for this long “waiting time”, the fact remains that the trial is now less than 3 months away.  Further, any determination of D2’s Question may be subject to appeal.  This, combined with my view that there would be no substantial saving in time or costs even if D2’s Question were determined in its favour, reinforces my view that the discretion should not be exercised. 

51.Therefore, I do not consider it appropriate, in the circumstances of this case, to exercise the Court’s discretion to engage the O.14A procedure, and I would have declined to exercise the discretion in any event.

CONCLUSION ON THE O.14A APPLICATION

52.In light of the aforesaid, I dismiss D2’s O.14A Application.  There is no reason why costs should not follow the event.  I therefore order on nisi basis that D2 do pay P’s and D1’s costs of the O.14A Application (including the costs reserved, if any)  to be taxed if not agreed with certificate for counsel.  This costs order nisi shall become absolute unless an application to vary is made within 14 days from the date of this Decision.

DIRECTIONS ON THE AMENDMENT APPLICATION

53.By consent, I make the following directions on the Amendment Application:-

(a)  Leave to D2 to file and serve an affirmation in opposition on or before 11 April 2026;

(b)  Leave to P to file and serve an affirmation in reply on or before 8 May 2026, if so advised;

(c)  No further affirmation is allowed except with the leave of the Court;

(d)  P’s summons dated 16 February 2026 be adjourned to 20 May 2026 at 10 am at Court 13 of the Eastern Law Courts Building for substantive argument with 2 hours reserved. 

54.It is hoped that all outstanding issues will have been resolved by the time the trial commences on 22 June 2026.

55.I thank Counsel for their helpful submissions.

Mr Nip Thomas, instructed by Joseph Leung & Associates, assigned by the Director of Legal Aid, for the Plaintiff

Mr Francis Chung, instructed by Fairbairn Catley Low & Kong, for the 1^st Defendant

Ms Bianca Yu, instructed by Department of Justice, for the 2^nd Defendant