Liu Sai So and Others v. Shui Wah Engingeering Supplies Ltd.

HCA004722/1994

HCA4722/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4722 OF 1994

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Coram: Deputy Judge To in Chambers

Date of Hearing: 9 September 1999

Date of Decision: 9 September 1999

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D E C I S I O N

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1. The defendant sought leave to serve interrogatories out of time. The plaintiffs were manual workers of the defendant, engaged in its Kowloon Bay site to assemble Mass Transit Railway train compartments. They alleged that they were constructively dismissed by the defendant. The facts which they pleaded as giving rise to the constructive dismissal were that the defendant (1) unilaterally transferred them to work in a machinery factory belonging to a third party (2) fundamentally changed the nature of their work and (3) reduced their working hours resulting in a reduction of their pay. The plaintiffs considered themselves as being constructively dismissed and left their employment.

2. The defences are that the machinery factory to which the plaintiffs were transferred is a newly acquired subsidiary of the defendant and that the working hours and the nature of the work for which the plaintiffs were to be engaged in the factory were not fundamentally different from what they were engaged to do previously. It also pleaded that the defendant was entitled to dismiss the plaintiffs for refusing lawful and reasonable order, refusing to accept reasonable job assignment, misconduct and for absence without leave. The defendant also counterclaimed for wages in lieu of notice.

3. Mr. Wong on behalf of the defendant claimed that since leaving the defendant's employment, the plaintiffs, through a new company called World Link Engineering Limited ("World Link") subcontracted the same work from the MTR Corporation which they were previously assigned by the defendant to perform. The defendant is now seeking to obtain evidence through interrogatories as to whether the plaintiffs or any of them were shareholders or directors of World Link, or were in any way related to or interested in World Link, or employed by World Link, or worked at the Kowloon Bay site.

4. The defendant may feel aggrieved that the plaintiffs left its employment to work in a company which took away its subcontract from the MTR Corporation. It might even have suspicion that the plaintiffs themselves were instrumental in bringing all that about. That is only a suspicion, because in terms of timing, it was the defendant who transferred the plaintiffs before they allegedly took up employment with World Link. The interrogatories are aimed at obtaining evidence of conspiracy to encroach upon the defendant's business. But that is not what the defendant has pleaded to justify the dismissal and there is no counterclaim for damages for encroaching upon the defendant's business.

5. On the basis of the pleadings of both parties, the issue is a simple and narrow one, i.e. whether what the defendant did amounted to constructive dismissal. If what the defendant did amounted to constructive dismissal, it would still be liable, with or without the conspiracy. If what it did did not amount to constructive dismissal, proof of conspiracy is unnecessary. In my view, the interrogatories are irrelevant, unnecessarily lengthen the proceedings, complicate the issue and waste the parties' time and costs. In any event, most of the information requested could be obtained through company search, or through cross examination, or by calling evidence of surveillance. Leave to issue the interrogatories out of time is therefore refused with costs to the plaintiffs in any event. The costs of the 7th, 8th and 9th plaintiffs are to be taxed in accordance with legal aid regulations.

Representation:

Mr. Tsang Wai Sum of M/S Albert Leung & Co. for 1st-6th Plaintiff

Ms Teresa Liu of M/S Sit, Fung, Kwong, Shum for 7th-9th Plaintiff

Mr. Allen Wong of M/S Hastings & Co. for Defendant