Yeung Chung Wai v. St. Paul's Hospital

DCEO7/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 7 OF 2003

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Coram: H H Judge Marlene Ng in Court

Date of Hearing: 24 October 2005

Date of Decision: 24 October 2005

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R U L I N G

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1.Today is the first day of trial.  Mr Chan, SC, for the Defendant informs the court that the Defendant has filed a second supplemental witness statement of Mr Yeung Yin-lam, Leonard, dated 20 October 2005, annexing a number of documents not yet included in the trial bundle.  The Defendant also intends to rely on two further documents, being correspondence between the Plaintiff and the Equal Opportunities Commission in July and October 2002.  The aforesaid statements and documents were only received by the court last Saturday, i.e., 22 October 2005.  At the hearing today, Mr Chan informs me the Defendant wishes to adduce the written notes of the meeting of 6 December 2001 attended by Sister Fong, Miss Christine Lam and the Plaintiff as prepared by Sister Fong.  These documents are included in the Defendant's supplemental list of documents filed on 19 October 2005.  Copies of these documents were provided to the Plaintiff's solicitors on 20 October 2005.

2.Mr Chan for the Plaintiff initially took objection to the entirety of the Defendant's late discovery and the second supplemental witness statement of Mr Yeung.  Eventually the differences between the parties are narrowed down to the following:  paragraphs 5, 8 to 17 and 19 of the second supplemental witness statement of Mr Yeung and Exhibits O, Q  and R thereto.

3.In fact, Mr Chan for the Plaintiff has a preliminary application as well.  He applies for leave to adduce further discovered documents in the Plaintiff's fourth supplemental list of documents filed on 20 October 2005.  The Defendant received such list on the same day and copies of those documents on the following day.

4.Apart from two photographs in respect of some goods being part of the Plaintiff's newly discovered documents which Mr Chan, SC, is presently still taking instructions, the stance of Mr Chan, SC is that leave to be granted for the Plaintiff to rely on his further discovered documents as well as for the Defendant to rely on his further evidence and documents on the ground that they are all probative of the issues before the court and the parties should deal with them as best as they can.

5.In light of the stance of Mr Chan, SC and the objection by Mr Chan for the Plaintiff I will proceed to first deal with the Defendant's application to adduce further evidence and to rely on further discovery. 

6.Given the lateness of the Defendant's further discovery and its intention to rely on the second supplemental witness statement of Mr Yeung, it should be anticipated that the Plaintiff may complain of the lateness of the application. 

7.I have reminded Mr Chan, SC, of the guidance from Deputy High Court Judge Lam, as he then was, in Hong Lok School Limited & Anor v Chow Sai Yiu & Anor, HCA17139 & 19001/1999 (unreported, 2 July 2003) that:

“...... it behoves the litigant giving discovery at the eleventh hour...... to provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from its opponents,

(a) the reasons why these documents were not disclosed earlier;

(b) the provenance and the makers of these documents;

(c) the relevance of these documents to the issues before the court;

(d) the availability or non-availability of the makers to attend trial for cross-examination in case his opponents made an application under section 48 [of the Evidence Ordinance].”

In that case counsel was unable to deal with the above matters fully and the court directed that the plaintiffs produce an affidavit to account for the late discovery. 

8.The need for an affidavit to account for the lateness was accepted in Guangzhou Green-Enhan Bio-engineering Co. Ltd & Anor v Green Power Health Products International Co. Ltd & Ors, HCA4651/2002, HCA2802/2003 and HCMP74/2004, Lam J, (unreported, 22 July 2004).  In that case, the plaintiffs applied on the eleventh day of the trial to adduce new witness statements and documents.  Counsel for the defendants objected to the new evidence at such a late stage and complained that the application should not be entertained in the absence of proper explanation by way of the affirmation.  In the wake of that objection, the case was stood down and affirmations accounting for the application were produced. 

9.No affidavit to account for the lateness was produced by the Defendant today but Mr Chan, SC, gave detailed explanation from the Bar Table.  He informed the court that the Defendant's solicitors took advice from Mr Johannes Chan, SC, in 2004 with a view to brief another counsel in full practice for the trial.  The Plaintiff served his supplemental witness statement in May 2005 and the parties' solicitors attended a pre-trial review in June 2005.  It was not raised at the pre-trial review that further discovery from the Defendant or supplemental evidence from Mr Yeung would be required. 

10.The matter was eventually set down for trial.  The original trial counsel had a conference with the Defendant and its solicitors on 6 and 8 October 2005.  But since the original trial counsel was tied up in another trial, Mr Chan, SC, was briefed on 10 October 2005.  Mr Chan, SC, had a conference with the Defendant's solicitors and the lay client on 18 and 19 October 2005 and came to the view that further evidence and discovery were required.  The draft second supplemental witness statement of Mr Yeung was completed on 19 October 2005, by which time the further documents were gathered.  The Defendant's solicitors then proceeded to disclose such further evidence and documents to the Plaintiff's solicitors urgently.

11.Mr Chan for the Plaintiff submitted that there was little point for the original trial counsel to have the conference on 6 and 8 October 2005 or indeed to become involved in this case at all.  The trial in which the original trial counsel was involved in was a 50-day murder trial.  Mr Chan, SC, explained that the original trial counsel at first anticipated that her involvement in that trial would end on 20 October 2005 and it was only due to unexpected developments in that trial that she was unable to appear for the present trial.

12.I am not persuaded that the Defendant's explanation is satisfactory.  Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of trial for further evidence to be filed or for further discovery to be made.  It is the duty of the handling solicitor to ensure that his client's case is properly prepared for trial and that careful consideration and attention should be given to the completion of the check list (with counsel's advice, if necessary) before the case is set down for trial.  As Lam J said in paragraph 19 of Wong Siu Yeung v Chu Kwong Wing & Ors, HCA5249/1999, (unreported, 20 May 2005) “[the] court should be able to rely on the diligent conduct of solicitors in the preparation of his client's case for trial otherwise it will make a mockery of our case management system.”  Although the advice of Mr Johannes Chan, SC preceded the Plaintiff's supplemental witness statement, it still behoved the Defendant's solicitors on receipt of such statement and prior to the pre-trial review to carefully consider whether the Defendant's case was in fact ready for trial.  If necessary and appropriate, counsel should be instructed to advise on the matter. 

13.Given my view on the explanation offered to the court for the lateness of the application, I see no reason for the parties to incur further time and cost to reduce the reasons for the lateness in a supporting affirmation.  However, that is not to say that litigants should not adhere to good practice in similar future applications.

14.Whether the court should allow the Defendant to rely on the second supplemental witness statement of Mr Yeung and the further discovery is a balancing exercise and the court must exercise its discretion in a fair manner, having regard to all the circumstances and the explanation given.  There is a need to strike a balance between the timetable laid down in the directions for the filing of evidence and making discovery and the principles enunciated by Sir Thomas Bingham, MR, in Costellow v Somerset County Council [1993] 1 WLR 256 at pages 263 to 264,

“As so often happens, this problem arises at the intersection of two principles each in itself salutary.  The first principle is that the rules of court and associated rules of practice, devised in the public interest to promote the expeditious despatch of litigation, must be observed.  The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.....

The second principle is that the plaintiff should not in an ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.....

Neither of these principles is absolute.  If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff's default has caused prejudice to the defendant.  But the court's practice has been to treat the existence of such prejudice as a crucial, and often  a decisive, matter.  If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice.... 

The resolution of problems such as the present cannot in my view be governed by a single universally applicable rule of thumb.  A rigid, mechanistic approach is inappropriate.”

15.On this basis, the lack of a good explanation from the Defendant or lack of specific prejudice to the Plaintiff is not necessarily determinative or conclusive. 

16.In my view, an important factor is the relevance of the intended evidence and further discovery to the issues of the substantive trial.

17.In respect of the second supplemental witness statement of Mr Yeung, paragraph 5 deals with the issue whether the Plaintiff's post at the General Office was created for him.  This is already put in issue in the earlier witness statements.  Mr Yeung's assertion in paragraph 5 that he told the Plaintiff that the post was obsolete is not new (see the Defendant's letter to the Equal Opportunities Commission dated 19 November 2001, signed by Mr Yeung, at pages 194 to 198 of the trial bundle).  The Plaintiff seeks via Mr Yeung's new witness statement to rely on two circulars for vacancies for other posts in order to suggest that in the absence of a similar circular the post was obsolete.  Given that the nature of the post is already in issue and on the materials before me I cannot say that these documents are irrelevant.

18.Paragraph 8 deals with Mr Pat Cheung.  The Plaintiff suggested that he was forced to accept a transfer to the General Office with shift conditions.  He said that his original post to the Admission Office was already filled by Mr Cheung.  Mr Yeung in paragraph 8 of his second supplemental witness statement denies this and says that the Plaintiff was fully informed and agreed to the transfer of posting.  The matters of Mr Cheung as well as the Plaintiff's voluntary agreement to the transfer of posting with shift duties were also canvassed in the same letter by the Defendant, signed by Mr Yeung, to the Equal Opportunities Commission dated 19 November 2001.  This is relevant and should not be something too much of a surprise. 

19.Paragraph 9 deals with the other staff and comparators.  The fact that Miss Wendy Wai worked for Accounts and General Office was raised in the Defendant's letter to the Equal Opportunities Commission dated 21 September 2001, signed by Sister Ho and Mr Yeung (see pages 186 to 189 of the trial bundle).  Such letter has already been discovered.  However, despite Mr Chan, SC's attractive arguments, I am not persuaded that Mr Yeung's reference to the fixed night shift duties of Ng Chi-cheung, a telephone operator, to be of any probative value.  There is no suggestion that he is a clerk, let alone a Clerk III, to enable him to be an appropriate comparator.  There is no explanation of the nature of his work or the scope of his duties as compared to that of the Plaintiff.  The second sentence of this paragraph should be struck out.

20.Paragraphs 10 to 12 deal with the matter of the reliability of the assessments in the Plaintiff's appraisal reports.  This relates to the issue of whether the poor assessments of the Plaintiff were the result of poor performance or victimisation following the Plaintiff's complaint to the Equal Opportunities Commission.  A Dr Lam complained of mishandling by a male at the Defendant's Outpatient Department.  The issue is whether that male must be the Plaintiff or possibly a Mr David Ng.  These matters are pertinent to the issues at the trial.

21.Paragraphs 13 to 14 deal with the main controversy between the parties, the shift duties of the Reception Booth and the Plaintiff's position, vis-à-vis those of  a Mr Dominic Chan, also a Clerk III.  There is also the additional issue of whether Mr Dominic Chan could have shared the late shift on rotation with the Plaintiff.  The prime premise of the Defendant that the Plaintiff did not make any such request is already stated in Mr Yeung's earlier witness statement.  Here Mr Yeung canvassed why any suggestion for rotation of the late shift would require careful consideration.  These matters are also relevant to the issues of the case.

22.In light of the confirmation by Mr Chan for the Plaintiff that the Plaintiff would not rely on Vicka Lai as a comparator or rely on her shift duties and circumstances as a ground for asserting disability discrimination and that any reference to Vicka Lai was for giving the historical background, Mr Chan, SC, agreed that the last three sentences of paragraph 13 of the second supplemental witness statement of Mr Yeung be struck out.

23.Paragraphs 15 to 17 deal with the matter of the appraisal reports.  The Plaintiff claimed that he had appraisal reports prior to 2001 showing good performance on his part.  The Defendant claimed there was none.  By the second supplemental witness statement, of Mr Yeung, the Plaintiff seeks to introduce minutes of meeting in 2001 and appraisal reports of other staff of the Admission Office in August/September 2001 to support the assertion that appraisal reports for Admission Office staff were made only during that period despite an earlier decision in 1998 to implement the appraisal system for all staff.  In fact, Miss Fok's explanation and Mr Yeung's request were canvassed in a letter from the Defendant to the Equal Opportunities Commission dated 19 November 2002 at pages 194 to 198 of the trial bundle. 

24.Mr Chan, SC, submits that these further appraisal reports were not adduced for their contents but for their dates.  Since the Plaintiff refers to his “good performance” appraisal reports prior to 2001 (which the Defendant says are non-existent) to suggest that the subsequent “poor performance” reports were a result of victimisation, these matters are relevant. 

25.Mr Chan for the Plaintiff submits that these further appraisal reports have no probative value.  He refers to the minutes of meeting discovered earlier which he says supports the contention that the appraisal system was implemented before 2001.  However, I am not concerned at this stage as to the assessment of weight of the evidence.  It is plain from Mr Chan's submission that the timing of the appraisal reports is in issue.  He also confirms that the authenticity of the further appraisal reports is not disputed and the Plaintiff does not intend to approach the relevant staff to investigate further about the appraisal reports.

26.Paragraph 19 deals with the automatic salary increments which Mr Yeung says that as a matter of hospital policy is not linked with performance.  This was put in issue by the Plaintiff in his supplemental witness statement and such evidence is therefore relevant.  Mr Chan for the Plaintiff, however, suggests that there is insufficient time for the Plaintiff to investigate about Wong Pui-shan and Chan Hing named in a second supplemental witness statement of Mr Yeung as examples of employees who had regular increments but were eventually dismissed, but after taking instructions, Mr Chan informed the court that the Plaintiff would not require further investigations but would, if necessary, deal with these matters in his oral evidence.

27.The further discovered document that is subject to challenge is the aforesaid handwritten note made by Sister Fong in respect of the meeting on 6 December 2001.  Such note deals with, inter alia, the handling of goods by the Plaintiff on 5 December 2001.  In fact, the Plaintiff's fourth supplemental list of documents disclosed photographs relating to such goods received by him on 5 December 2001.

28.Both parties consider these matters pertinent to the issues.  Mr Chan for the Plaintiff confirms that the Plaintiff does not challenge the authenticity of the handwritten note.  In those circumstances, it is open to the parties to cross-examine the Plaintiff and Sister Fong on the contents of the handwritten note and the photographs. 

29.Bearing in mind that I have to preside over the trial, I have taken care to only note the relevance (or otherwise) of the new evidence or documents to the issues.  It is inappropriate for me to go into any further detail. 

30.On the whole, the second supplemental witness statement of Mr Yeung and the annexures thereto do not create new lines of defence but are evidence that supplement the Defendant's existing defence case.  Except for one alleged comparator which I have referred to above, the evidence and documents are relevant to the contested issues. 

31.Some of the matters raised have been canvassed in earlier correspondence with the Equal Opportunities Commission and all of these matters can be or have been dealt with by the Plaintiff himself or by cross-examination.  Indeed, Mr Chan for the Plaintiff informs me that should leave be granted for the Defendant to adduce the supplemental evidence and discovery, the Plaintiff will be able to deal with these matters in his oral evidence and will not require any adjournment at this stage. 

32.From what I hear from Mr Chan for the Plaintiff, I am not persuaded that the Plaintiff had to deal with new dimensions to this case.  In other words, the Plaintiff has not identified specific prejudice caused to him as a result of the late evidence in discovery save and except for the question of costs.  I take the matters raised by Mr Chan for the Plaintiff into account. 

33.I also bear in mind the convenience of the court in progressing trial hearings quickly and the interest of justice generally in the efficient despatch of hearings before the court, not only for the parties before the court but for other litigants who have use of the court's services.

34.Looking at the matter in the round and having regard to all the circumstances of the present case, I am of the view that it is just to allow the Defendant to rely on the second supplemental witness statement of Mr Yeung (except for the second sentence of paragraph 9 and the last three sentences of paragraph 13) and the further discovery.  I do not consider that the new materials which are relevant to the issues of the case should be shut out or that any disadvantage that may be suffered by the Plaintiff is sufficient to justify refusal of the further evidence and documents.  I also agree with the parties that the Plaintiff should have leave to rely on his newly discovered documents.

(Discussion re formal orders)

(Discussion re costs)

35.The Plaintiff applies for costs of the Defendant's application to rely on the second supplemental witness statement of Mr Yeung and the further discovered documents.  Although the Plaintiff has a similar application for further discovery, little time, if any, is taken up today in respect of this application. 

36.The starting point is section 73C(3) of the District Court Ordinance.  This sub-section provides that:

“Each party to any proceedings in the court in the exercise of its jurisdiction under the Disability Discrimination Ordinance, Cap.487, shall bear its own costs unless the court otherwise orders on the ground that,

(a) the proceedings are brought maliciously or frivolously; or

(b) there are special circumstances which warrants an award of costs.”

37.Mr Chan for the Plaintiff contends that there are special circumstances which warrant an award of costs under limb (b).  I have ruled that I do not regard the explanation of the lateness of the application satisfactory.

38.In L v Equal Opportunities Commission & Others, DCEO1/1999 and DCEO6/1999 (unreported, 23 June 2003), Deputy High Court Judge Muttrie held that the two limbs of section 73B(3) of the District Court Ordinance which deals the Sex Discrimination Ordinance and which are similar in terms to section 73C are disjunctive.  He took special circumstances to mean something other than malice and frivolity.  He went on to say that he cannot rely on the conduct which the Defendant said was vexatious and he should not take into account the lack of merits in the Plaintiff's claim.  However, the learned judge found there was special circumstances in relation to the Plaintiff's conduct as to the summons for discovery and awarded costs against the Plaintiff in respect of that application. 

39.Mr Chan, SC, said that the conduct in that case was special in that there was deliberate delay and obstruction, not just in resisting the discovery application but in compliance with court orders, which, he says, is different from the position here. 

40.Mr Chan for the Plaintiff says that the interpretation of special circumstances should not be so restricted.  The application by the Defendant should not be left to the eleventh hour and should have been dealt with much earlier.

41.I have found that the application is late and the explanation for the lateness is not satisfactory, but equally it is apparent and I have so found that the matters canvassed are relevant to the issues of the case.  The Defendant has not identified specific prejudice that would require him time to deal with those matters. 

42.Given the general principles in the Costellow case and the balancing exercise that has to be undertaken, all these factors have to be taken into consideration in order to determine the matter.  In the circumstances, I do not consider that there are special circumstances that are envisaged in the second limb of the relevant section even though in an ordinary case costs may well be ordered.  However, given the requirements that have to be satisfied under section 73C(3), I am not satisfied I should exercise my discretion to grant costs in the circumstances.

Representation:

Mr Richard Chan, instructed by Messrs Joseph Leung & Associates, for the Plaintiff

Mr Chan Chi-hung, SC, leading Mr Michael L Y Leung, both instructed by Messrs Munros, for the Defendant