Lui Wing Chung v. Wong Wai Tak

DCEC363/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 363 OF 2008

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Before: Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 4 January 2011

Date of Delivery of Decision: 4 January 2011

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D E C I S I O N

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1.The respondent applied to set aside a judgment on liability entered against him in default of appearance on 27 February 2009 and the assessment of the compensation that followed on 5 August 2009. The summons to set aside was taken out by the respondent on 8 October 2010.

2.In these proceedings, the applicant’s claim is against the respondent as his employer for compensations under sections 9, 10 and 10A under the Employees’ Compensation Ordinance, Chapter 282, for injuries sustained in a traffic accident during work involving the respondent’s light goods vehicle driven by one Tse Ngau Chai on 27 March 2006.

3.The respondent claimed that he was never served with and had never received any of the documents in these proceedings.  He claimed the address on the applicant’s application is and was never his residential address.  He admitted it was the address he put down in the vehicle registration for the light goods vehicle owned by him reg. no. FY 8639, but he claimed at the time he was in partnership with a friend, Miss Peggy Wong, whose address he put down as his address on the vehicle registration form.  He claimed he in fact lived with his wife in an address in Cheung Sha Wan.  The address he registered for the vehicle licence was Greenfield Garden, Block 1, 24th Floor, Tsing Yi, New Territories (hereinafter known as “the Greenfield address”).

4.The Greenfield address for service also appeared in the Form 2 filed by the employer in ‘the report of an accident involving an employee’.  The form was not signed but it bore the full name, ID card number and phone number of the applicant, the full name of the respondent, his mobile phone number and the Greenfield address.  The respondent claimed the Form 2 was not filled in by him nor was it filed by him even though he admitted he was indeed interviewed by the Labour Department officers after the accident (the form appears on page 163 of bundle B).

5.The applicant exhibited not only the accident light goods vehicle’s registration record but also the record of another vehicle, LK 9882, also registered in the name of the respondent on the day of the accident, 27 March 2006.  This vehicle is a 16.6-tonne goods vehicle which the respondent had also registered the Greenfield address as his address. 

6.Even though the applicant’s solicitor did obtain the statement the respondent made to the police after the accident, his address and particulars were deleted from the statement, therefore the applicant claimed the only known address of the respondent was the Greenfield address that the applicant used to effect service on the respondent, it being the last known address of the Respondent the applicant could find. 

7.As usual, the service of the application in an employee compensation case was made by the registry office of the District Court.  Under the requirement of the ordinance, the address of service was the Greenfield address supplied by the applicant.  However, service to the Greenfield address by the District Court was returned and marked “no such person.”  Consequently, the applicant applied to the District Court Master and was granted leave to effect substitute service on the respondent by advertising in a local Chinese-language newspaper.  This led to the entry of judgment against the respondent in default of answer in February 2009. 

8.The respondent claimed in the affirmation filed in support of the application to set aside that he had only learnt of the action against him in July 2009 for the first time when a clerk from Messrs Deacons representing the Motor Insurance Bureau telephoned him in July 2009.  He admitted, he met a staff of Deacons a few days later in Tsuen Wan and he signed some documents given to him by the Deacons representative.  He claimed he was told by the Deacons representative that the firm did not require his residential address even though he told him the Greenfield address was not his residential address.  He admitted he did nothing about the information he was given in spite of learning of the judgment entered against him.

9.He was contacted by the Employees Compensation Assistance Fund Board in July 2010 and was informed again there was a judgment against him.  The respondent lodged the application to set aside the judgment against him in October 2010.

10.The respondent denied the applicant was employed by him.  He also claimed neither was Tse Ngau Chai the driver who drove his light goods vehicle on 27 March 2006 his employee.  He claimed he had received a call from Tse on the morning of 27 March 2006 while he was still physically in China, and Tse asked him for the loan of the light goods vehicle that day. 

11.He produced immigration records of his entry into Hong Kong in the morning of 27 March 2006 which showed the time of his entry was 9:34:12 am.  He further denied the applicant’s claim that he had known him since 2004 or that his brother had introduced the applicant to work for the respondent.  He further claimed that his brother also did not know the applicant, he produced an affirmation from his brother, Wong Wai-hung, who simply adopted the respondent’s affirmation.

Findings

12.I find the judgment in default entered on 27 February 2009 and the assessment of compensation of 5 August 2009 were regular in the sense that the applicant and his solicitors had done everything to locate the respondent and located the last known address of the respondent, namely, from the vehicle registration records and the Form 2 lodged with the Labour Department showing the last known address as the Greenfield address.  

13.The applicant’s solicitors further tried to obtain information from Messrs Deacons by writing to Messrs Deacons, requesting Deacons to notify the respondent of the hearings for Messrs. Deacons was representing the respondent in the High Court PI action lodged by the applicant.

14.The respondent admitted he knew of the action and the judgment against him in 2009 when the clerk from Messrs Deacons telephoned him and met him in Tsuen Wan. According to a letter from Messrs Deacons in reply to the applicant’s solicitors’ enquiry, the meeting between the staff from Deacons and the respondent took place on 15 July 2009, five months after the judgment on liability was entered by the applicant. 

15.The respondent ignored the information from Deacons.  He did nothing for one year. He had only lodged the application to set aside the judgment on 8 October 2010.  His explanation of the delay was ambiguous.  He claimed he had consulted a number of solicitors after he was informed of the judgment against him for a second time in July 2010 by Miss Leung of the Employees Compensation Assistance Fund Board, he was told there was a second judgment against him in the High Court action lodged by the applicant in HCPI197 of 2009.  

16.I am not convinced the respondent’s conduct deserves any sympathy.  The delay was a long one, there was no satisfactory explanation for such a long delay.  The record of the Greenfield address was a deliberate act, and he made no effort in correcting the address 7 months after the accident in October 2006 when the information was supplied by the Transport Department to the applicant’s solicitors.

17.As to the merits of the respondent’s defence, it contained a bare denial of employment relationship between the applicant and himself.  He relied on his own employment as a cross-border driver to a transportation company, Kam Yuen, and the timing of his entry to Hong Kong from China on the day of the accident and on his own denial of employing the applicant.  On his own admission, the LGV was used in the business partnership of his friend, Miss Peggy Wong, and himself.  That was why the LGV, he said, was purchased in his name.  This showed he was operating his own business while employed to drive for another. 

18.So much for his claim that it was impossible for him to have employed the applicant.  I find it incredible for a driver who had invested in the purchase of a light goods vehicle for his business use should agree to lend this vehicle free of charge or free of rental to another; in this case, the driver who had an accident with the applicant sitting in the passenger seat.

19.As to the time of entry into Hong Kong from the Lok Ma Chau Border Checkpoint, according to the applicant, it takes 20 minutes to get from Lok Ma Chau to Fanling where the applicant was loading the light goods vehicle on 27 March 2006.  According to the applicant’s witness statement filed in April 2009, the respondent arrived at a parking lot in Fanling at around 9.30 am, he had come up to talk to the applicant at around 10.30 am.

20.The applicant’s account of timing may not be completely accurate, however, the respondent’s presence at the parking lot supervising the loading is quite possible even if he had only arrived at the parking lot after 10 am.

21.Even on the basis of the judgment entered was an irregular judgment, the respondent has to show his defence has a real prospect of success.  The notes on Order 13 in the Hong Kong Civil Procedure 2011 13/9/14 stated he must satisfy the court his case and the evidence that he adduces in support of it is potentially credible and carries some degree of conviction.  Thus, the court must form a provisional view of the probable outcome of the action.

22.In spite of my doubts of the respondent’s defence, I do not think I should form an opinion or a view of the trial or decide the truthfulness of the respondent’s affidavit evidence without a trial.  For this reason, I am prepared to set aside the judgment on liability and quantum of damages on condition that the respondent pays into court a sum of $200,000 within 21 days from the date hereof. 

23.The reason I imposed the aforesaid condition is the Respondent’s lack of credibility for he has given a false address; that he claimed he had never received the application served on him by the court; that he had delayed for over a year after he had been told of the judgment against him; that his inaction which seemed to be efforts of evasion of service and liability; in short, his conduct and the delay.

24.Costs of the application should be borne by the respondent, to be taxed if not agreed, with certificate for counsel.

(Discussion re costs)

25.On the wasted-costs order, I found for reasons I have given above the respondent was the cause of the failure of service on him for he had deliberately put down an address which he claimed was not his own in his vehicle registration form for at least two of his vehicles, and in the Form 2 filed into the Labour Department with the respondent’s name and the Greenfield address but with the Respondent’s mobile phone number, it was the reason why the applicant effected service on the Greenfield address.  It is the action of the respondent that had misled the applicant into serving the application at the Greenfield address. He had further confirmed to a Deacons staff his residential address was the Greenfield address even though he had denied it in his affidavit, but the information from Deacons confirmed the respondent did inform them his address was the Greenfield address. 

26.Consequently, I find there is good cause for the respondent to bear the wasted costs of the applicant since 27 February 2009 to date.  I therefore order that the applicant’s costs from 27 February 2009 to to date be borne by the respondent payable forthwith, to be taxed if not agreed.  Legal aid taxation:- The applicant's own costs to be taxed in accordance with Legal Aid Regulations.

Mr Simon H W Lam, instructed by Messrs Henry Wan & Yeung, assigned by Director of Legal Aid for the Applicant

Mr Matthew T S Tse, instructed by Ma Tang & Co., for the Respondent