Law Yim Ming v. Cheung Hang Fook t/a Tung Lok Villa and Another

DCEC000450A/2001

DCEC450/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 450 OF 2001

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Coram: H H Judge Carlson in Chambers

Date of Hearing: 13 May 2002

Date of Ruling: 13 May 2002

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R U L I N G

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1.This is an application by the 1st respondent to re-amend the answer in a most substantial way.

2.The matter comes about as follows. The applicant was employed at a short-time hotel in the New Territories, and it is said on his behalf that in the course of his work there, he was attacked and slashed by two individuals, who caused him serious injury.

3.He brought the application initially against the 1st respondent alone as his employer, alleging that these injuries were caused in the course of his employment.

4.The original answer which was filed on behalf of the 1st respondent - at that stage, he was the only respondent - contained an admission that the applicant was a former employee of the respondent. There was an averment that the applicant was employed by the respondent as a cashier since July 1999, but that after the applicant had been charged with an offence of living on the earnings of prostitution, the respondent gave notice to the applicant to terminate his employment. There then followed a detailed recitation of how the applicant returned to the villa where he had been employed in order to visit a Mr Lee Keung, who had originally introduced the applicant to the respondent, and that thereafter the applicant was attacked. And so the case was clearly put in that original answer that at the time of the attack and injury of the applicant, he was not, in fact, in the employment of the 1st respondent.

5.Subsequently, the answer was amended, but not in an especially material way, and I need not make any reference to those amendments.

6.The applicant then sought and obtained leave to amend the application by joining the 2nd respondent effectively as a co-employer of the applicant, it being said that the 2nd respondent was the 1st respondent's partner.

7.Now the 1st respondent has chosen to go to other solicitors. They have considered his case and they are now proposing an answer which is attached to the summons before me, which has the effect of representing a complete volte-face in the respondent's case, the allegation now being that in fact the applicant was at all times the employee of Mr Lee Yuk-keung, and there is also an application which is made to allow the respondents to file a witness statement with a view to calling Mr Lee Yuk-keung, who will give evidence according to the witness statement that I have seen in support of the proposed re-amended answer.

8.Mr Lee, who appears for the applicant, opposes this application. It should be said straight away that the trial dates for this matter are on 22 and 23 May, so that is only some 8 days away. Mr Lee says, firstly, where one is faced with this sort of pleading which seeks, in effect, to withdraw admissions made in the original pleading, that I should refuse, in the exercise of my discretion, to allow such a substantial departure from the original pleaded case where, of course, the respondent was able to give instructions to his then solicitors, who in turn have produced on his behalf something of a detailed answer; certainly detailed by the standards of this jurisdiction, where so many answers rarely set out a positive case, but merely amount to a bare denial. This particular answer in its original form, as I say, has set out the case in considerable detail, and now, in equally full detail, the re-amended answer seeks to put a contrary case, and Mr Lee says this simply is not right; the 1st respondent should not be allowed to play fast and loose with the court and with the applicant, who will be severely prejudiced by this change of tack.

9.The prejudice that Mr Lee relies upon is that now they seek to call Mr Lee Yuk-keung. He is named as the employer in the re-amended pleading. Mr Lee would then have to give very serious consideration to whether the applicant should, as a matter of prudence, apply to join Mr Lee Yuk-keung as a 3rd respondent. That will inevitably result in delay. It will also mean inevitably that the trial dates on 22 and 23 May can simply not be held. There will have to be an adjournment. I have made enquiries of the court list and dates are available in early July and also in mid-July, so any delay would not be especially long, although, of course, undesirable.

10.The other point that Mr Lee draws attention to is that the two-year limitation period which is provided for under section 14(1) of the Employees Compensation Ordinance has now expired so far as any application that might be made against Mr Lee Yuk-keung, and so on the applicant's behalf it is submitted that that is a real hurdle which the applicant would have to face if it was decided that Mr Lee Yuk-keung was to be joined as a 3rd respondent. An application would have to be made to the court under section 14(4) to bring the application against Mr Lee Yuk-keung, notwithstanding the expiry of the two-year limitation period. I am bound to say, speaking for myself, that if ever there was a case where an applicant could demonstrate a reasonable excuse for not bringing in Mr Lee Yuk-keung earlier, I would have thought that this is it. He certainly would be on very strong ground, although I am not pre-judging that matter, and it is right to say that this is an added difficulty which the applicant would need to face.

11.Then, of course, if Mr Lee Yuk-keung were successfully joined, Mr Lee's interests would have to be taken into account by the court in a very full way. For instance, he might apply for Legal Aid. There would then be a six-week statutory stay whilst he applied for Legal Aid and his application would have to be considered by the Legal Aid Department. He might wish to, if he failed, ask for further time to collect money in order to instruct solicitors privately. So there are all these matters to take into account, and these sort of considerations should sound in the exercise of my discretion.

12.In any event, the litigation which would then involve three respondents would have to be dealt with properly. Mr Lee Yuk-keung inevitably would ask for discovery of the applicant's case; he would ask for discovery of the other respondents' case; he would be entitled to that. There might be interlocutory disputes which arise as a result of that, and all this would sound both in costs and in time. So when I say that alternative trial dates are available in early July and mid-July, those dates would certainly not be written in stone. So these are weighty considerations which I must give full attention to.

13.On behalf of the 1st respondent, whose application this is, Ms So submits that the court should allow the amendment so that the matter can be tested by the trial judge on its proper factual basis. The fact that there has now been an about turn on the part of the respondent as to the factual situation is no doubt something that he will be very closely cross-examined on at the trial, and his time in the witness-box may prove to be a most uncomfortable one. But that is a matter for the trial. It is not a matter which I should concern myself in deciding whether or not I should allow the amendment.

14.The 2nd respondent's interests need to be taken into account. He is in person. He has indicated to me that he is perfectly content to go along with the amendment. In fact, he says he supports it, whilst at the same time he indicated that he is anxious that the matter should be tried as soon as possible. But he is comfortable with the amendment, so perhaps his position need not be considered any further at this stage, given his stance.

15.I found this a most difficult decision to arrive at, but ultimately I have decided that I should allow these amendments to be made, and I am also going to allow the statement of Mr Lee Yuk-keung to be filed. Nevertheless, I am also going to give every consideration to the applicant now.

THE COURT:

16.Mr Lee, what I have in mind is this: I am going to hold the current trial dates until Friday to give you an opportunity to consider whether you want to join Mr Lee Yuk-keung or whether you are merely prepared to treat his witness statement and the amended pleading as moonshine, as I indicated in the course of the argument, and then the date can be held, and no doubt you will attempt to have a field day with the respondents and their witnesses in the witness-box. That is one course. I am going to allow you time to consider your position. Shall we say Friday, today being Tuesday? So I will hold that date.

17.I will also, until Friday, reserve 17 and 18 July in Court 35 for this case in case the dates in May go. But it does seem to me, Mr Lee, that if you consider it prudent to join Mr Lee as a 3rd respondent, you do run a severe risk of not even being able to hold those dates in July, because I would then have to give Mr Lee Yuk-keung every consideration that the court is bound to accord to a respondent. So consider your position between now and Friday and let me know on Friday what you want to say about this matter.

18.So I am going to allow the amendments. I am going to allow them to put in the witness statement of Lee Yuk-keung, and what I will say about costs is let us wait till Friday. If the case is going to be adjourned, I would have thought inevitably that the costs of and occasioned by the adjournment and everything like that would need to be paid by the respondents. In any event, an amendment of this sort would attract an order for costs against the respondent. But I will leave that decision over until you tell me what you want to do on Friday.

Representation:

Mr Nick Lee, of Legal Aid Department, for the Applicant

Ms Betty So, of Messrs A M Mui & Kwan, for the 1st Respondent

2nd Respondent, Cheung Kwok-wo, in person