(A) Introduction
In
Ma Man Chun and Ma Man Kam, the Administratrices of the Estate of Fock Kam
Chau, Deceased v. Fu Ka Engineering & Construction Ltd and others, [1] HCPI
272/2020, date of judgment: 27 October 2025, the Court addressed a highly unusual
late application to amend pleadings after the trial of the liability issue on
the Running List was vacated. The trial was vacated on its first day because the
learned trial judge (the “Learned Judge”) found the Plaintiff’s Statement of
Claim deficient in accommodating the case advanced in their opening submission.
Granting leave to amend pleadings at such a late stage is exceptional, especially after a trial date has been fixed. This case serves as a salient reminder of the parties’ duty to assist the Court in case management and provides valuable guidance on the Court’s approach to late amendments as well as the interplay between civil proceedings and criminal proceedings.
(B)
Facts
The case arises from a
fatal industrial accident on 10 July 2017, where three tunnel workers,
including the Deceased, drowned and were overcome by hydrogen sulphide (H₂S)
gas in a hand-dug tunnel in Hung Hom (the “Accident”). [2]
The Defendants were subsequently
prosecuted for breaching statutory duties but were acquitted in 2020. [3] The trial
Magistrate found the inflow of underground foul water and H₂S, which caused the
Accident, was unknown, unforeseen and not reasonably unforeseeable and that a
safe system of work had been provided.
In June 2021 (just
before the expiration of the 3-year limitation period), the Plaintiffs
commenced the subject personal injuries action on behalf of the dependents and
the estate of the Deceased. [4]
When the case was warned
for trial on 16 April 2024, the Learned Judge vacated the trial on the
following two main grounds: [5]
(1) The State of the Evidence:
During case management by the Master, the parties consented to adduce various
documents including the accident investigation report, statements of opinions
and expert reports, most of which were adduced by the criminal proceedings
mentioned above. The evidence mentioned above accounted for some 30 box files
at the time of the trial, of which 17 to 18 contained the statements given by
some 70 individuals involved in the accident investigation. Given the
voluminous and complex documentary evidence, the Learned Judge found it
difficult to identify the relevant parts for trial.
(2) Deficiencies in the Plaintiff’s
Pleadings: The Defendants argued that some of the contentions advanced by the
Plaintiffs in their opening submission were not accommodated by their
pleadings. The Learned Judge agreed with the Defendants’ submission.
As such, the Learned
Judge made an unless order limiting the time within which the Plaintiffs might
take out an application to amend the statement of claim. The parties were
directed to seek further case management directions before the case may come on
for trial again. [6]
Subsequently, the
Plaintiffs filed their summons for leave to amend the statement of claim as per
draft annexed to the summons. [7] For the purpose of the said application, the Court
directed the parties to submit a considered joint statement of the agreed and
non-agreed relevant facts with references to the relevant evidence. [8] However, the above
exercise did not go well. Therefore, the Court directed at the end of February
2025 that the Plaintiff’s application for leave to amend would be determined based
on the materials already before the Court. [9]
(C) Decision
The Court’s Approach on Amendments
The Court explained that
the purpose of the amendments was to ensure the Plaintiffs' pleadings properly
reflected the case advanced in their opening submissions, and thus establishing
the relevance of the current evidence they intended to rely on. The Learned
Judge defined the scope of the amendment as that “to reflect [the plaintiffs’]
case as disclosed in their opening submissions”. [10]
Although the Learned
Judge directed the Plaintiffs to file an affidavit evidencing the basis for
their amendments, the Court cautioned that this direction should not be
misinterpreted. [11] The Plaintiffs, who verified their pleadings by a statement of
truth, relied on evidence from the accident investigation and expert reports.
However, at the pleading stage, they were not required to prove their
case or to demonstrate that their interpretation of the evidence would
ultimately be accepted by the Court. The Defendants remained entitled to
dispute these contentions, which would be adjudicated at trial. The direction
to file an affidavit did not alter this principle. [12]
Consequently, the
Court's approach was to determine whether the proposed amendments constituted
arguable contentions based on facts or evidence, even if that evidence was
disputable in its interpretation. An amendment would only be denied if it was
clearly not grounded in the evidence or failed due to a specific and valid
challenge from the Defendants. The consideration of whether amendments should
be allowed was guided by the general principles for granting amendments and the
underlying objectives of Order 1A of the Rules of the High Court, Cap. 4A. [13]
Late Application
The Court acknowledged
that the application for amendment was late. However, it reaffirmed that leave
to amend should not be denied on the ground of delay alone, where the purpose
is to ensure the real issues in dispute are properly placed before the Court
and the parties. [14]
The Court further
observed that the case required further case management before a new trial
could be scheduled. The Learned Judge, in vacating the trial and ordering further
case management, must have been aware of the inevitable delay this would cause.
In such circumstances, the impact of the amendments on the overall delay was
difficult to assess, especially given the issues already taken by the parties’ existing
pleadings. As such, the lateness of the application was treated as a relatively
neutral factor in the Court's decision. [15]
Evidence and Criminal
Proceedings
The Court addressed the
interplay between the evidence from the criminal proceedings and the subject
civil proceedings.
The parties have agreed
to rely on the documents, reports and written opinions arising out of the
accident investigation and criminal prosecution as evidence in the trial of the
present case without their makers being called to testify. The Plaintiffs have
also filed hearsay notice in respect of these as well as other statements and other
documents. As such, they would be part of the hearsay evidence to be taken into
account in the trial of the subject proceedings. [16]
A key dispute arose
regarding parts of the expert reports from the criminal proceedings that were
redacted. The Defendants argued these redacted parts were “withdrawn”
and thus cannot be relied upon. The Plaintiffs replied that the redaction was
due to hearsay rules in the criminal proceedings, because the makers of that reports
were not called to testify, not because the experts abandoned their opinions.
The Court found it
premature to rule on the weight or admissibility of those disputed evidence at
this stage. The Court highlighted that a full evaluation must wait for the
civil trial itself. Further, the Court noted that if the Defendants’ strict
interpretation of the evidence were accepted, it could justify striking out the
Plaintiffs’ entire claim, which was a stance that the Defendants have not taken. [17]
The Proposed Amendments
The Court granted leave
to the Plaintiff to amend the Statement of Claim subject to the following modifications:
|
Paragraph No. |
Court’s Decision and
Key Reasons |
|
1 |
Allowed. Amendments
were cosmetic and uncontroversial. [18]
|
|
2(h) to (r) |
Allowed. The
amendments constituted permissible pleadings of background facts. [19]
|
|
5(f), (ff) |
Allowed, subject to a
condition. The Plaintiffs were allowed to plead their theory that driving
grouting pipes caused the inflow, but this was conditioned on adding a clause
in §8(o) to clarify it is their alleged version of events. [20]
|
|
8 |
Amendments largely
allowed, with specific revisions: [21]
8(o): Required a
new introductory clause: “Insofar as the accident happened in the manner as
pleaded in §5(ff) above”. 8(t) and (u): Allowed,
but the specific descriptors “portable escape-type” and “portable type...
with audio-visual” were deleted due to a lack of evidentiary basis. 8(v): Disallowed. The
plea regarding a "life line" was rejected as its relevance was not
readily understandable on the facts. |
|
9A |
Allowed. The new plea
for breach of statutory duty under Regulation 5(4) was permitted, as it arose
from substantially the same facts as the existing claim and was not a
time-barred new cause of action. [22]
|
|
11(e) |
Allowed. The amendment
repeated the particulars of negligence for the purpose of the employer's duty. [23]
|
|
12A |
Allowed. The
amendments to plead facts supporting reasonable foreseeability were
permitted. The reference to a “60mm foul water pipe” in §12A(d) was corrected
to “600mm”. [24]
|
Costs
It is ordered that the Plaintiffs
should pay the Defendants their costs of and occasioned by the application for
leave to amend, to be taxed, if not agreed, with certificate for counsel. [25]
(D) Key Takeaways
This case is significant on the following grounds:
1. Critical
Importance of Pleadings: The
case underscores that pleadings are foundational. They must accurately and
comprehensively define the case to be presented at trial. Failure to do so can
lead to serious consequences, including the vacating of a trial, significant
costs, and substantial delays.
2. The Permissibility of
Late Amendments:
The Court affirmed that while delay is a relevant factor, it is not an absolute
bar to amendments. Leave to amend at a late stage may be granted to ensure the real issues in
dispute are properly placed before the Court and the parties. However, the
scope of such amendments is limited to properly reflecting the case the party
has already indicated it intends to advance.
3. Interplay
with Criminal Proceedings: This
case clarifies that findings from criminal proceedings are not binding in a
subsequent civil case arising from the same facts. The parties agreed to admit
the documents from the criminal proceedings as hearsay evidence in the civil proceedings,
without calling the makers of those documents. The civil trial judge will
independently evaluate the weight and credibility of such evidence as the burden
of proof in civil proceedings differs from that in the criminal proceedings.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=173789
[2]Ma Man Chun and Ma Man Kam, the Administratrices of the Estate of Fock Kam Chau, Deceased v. Fu Ka Engineering & Construction Ltd and others, §2, 4
[3] Ibid, §5
[4] Ibid, §7
[5] Ibid, §10-15
[6] Ibid, §16
[8] Ibid, §19
[9] Ibid, §20
[10] Ibid, §33
[11] Ibid, §34
[12] Ibid, §35
[13] Ibid, §36, §38
[14] Ibid, §54
[15] Ibid, §55
[16] Ibid, §56
[17] Ibid, §60
[18] Ibid, §61
[19] Ibid, §80
[20] Ibid, §85
[21] Ibid, §101
[22] Ibid, §95
[23] Ibid, §96
[24] Ibid, §101
[25] Ibid, §102
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