Wong Chi Ming Jack v. Law Ying Fai and Another

DCEC 48/ 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 48 OF 2004

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BETWEEN

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RULING ON PLAINTIFF'S APPLICATION
TO ADDUCE EVIDENCE
OF ADDITIONAL WITNESSES

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Coram  :  Deputy District Judge E. Yip in Chambers

Date of Hearing    :  16 November 2005

Date of Judgment  :  16 November 2005

1.The plaintiff’s pleadings say that on 22 June 2002 he was injured in an accident in the course of employment of the 1^st Respondent, who was the contractor of the 2^nd Respondent.  The plaintiff claims compensation. 

2.The Respondents’ pleadings say that the plaintiff’s employment had been terminated before the accident.  He last worked for the Respondents in April 2002.  He could not have been working there on the date of the accident. 

3.The parties filed witness statements in support of their respective cases.  Trial was to commence on 28 November 2005.  The plaintiff took out the present summons to adduce evidence, in the form of witness statements, of 3 additional witnesses.  The plaintiff filed an affirmation to explain why he was only recently being able to obtain the fresh evidence. 

4.I fully appreciate that the Respondents are anxious to keep the trial dates. 

5.I have considered the plaintiff’s explanation for the lateness in obtaining such evidence and find it to be reasonable. 

6.As to the relevance of such evidence, I am of the view that the Respondents rely heavily on the evidence of Mr. Cheung Shiu Hung to the effect that everyone must sign in upon entry into the construction site and hence the absence of the plaintiff’s signature on the sign-in record shows that he was not present at the construction site since April 2005 up to the date of the accident.  Without such fresh evidence, the plaintiff will be hampered in his challenge of Mr. Cheung’s evidence. 

7.It is a balancing exercise.  I have considered the impact on the scheduled trial in terms of time, costs and other factors.  There is no prejudice to the Respondents which cannot be set right by an appropriate cost order.  I would allow the plaintiff to adduce such fresh evidence subject to editing which I have set out in Court.         

8.Upon hearing both parties, I order costs of the summons to the respondents in any event on a party and party basis, to be taxed if not agreed.  The plaintiff’s own costs be assessed under legal aid regulations. 

Dated this 16 November 2005

Mr. Tam Ying Kit, of M/s Ambrose Ng and Co., assigned by D.L.A. for the Applicant

Ms. Fung Oi Kwan, of M/s Cheng, Yeung and Co., for the 1^st and 2^nd Respondents