Employee's Compensation Case2001

ATIQ-UR-REHMAN v. PAUL Y. - SELI JOINT VENTURE

Related cases with same parties

CACV52/2007PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased v. PAUL Y. - SELI JOINT VENTURE
DCEC493/2000PARVEEN TAHIRA v. PAUL Y. - SELI JOINT VENTURE
HCAL866/2019MOHAMMED HANIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

Files (5)

[2020] HKDC 987-EN-2020-11-09

ATIQ UR REHMAN on his own behalf and on behalf of the dependants of SAIF UR REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased v. PAUL Y. - SELI JOINT VENTURE

HTML content

DCEC 30/2001

[2020] HKDC 987

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 30 OF 2001

---------------------

IN THE MATTER OF AN APPLICATION BETWEEN

	ATIQ-UR-REHMAN on his own behalf	Applicant
	and on behalf of the dependants of
	SAIF-UR-REHMAN otherwise known as
	MOHAMMAD SHEHZAD, deceased
and
	PAUL Y. - SELI JOINT VENTURE	Respondent

---------------------

Before:

Her Honour Judge Levy in Chambers (paper disposal)

Date of Decision:

9 November 2020

--------------------

DECISION

--------------------

A. Application for variation of a nisi order

1. This is an application by the Applicant to vary a nisi order this court made on 8 April 2020 (Nisi Order) in relation to a summons (Summons) the Director of Legal Aid (Director) filed on 5 July 2019.

2. After the Applicant was served with the Nisi Order on 28 April 2020, the Applicant, one day before the 14-day’s deadline this court stipulated for the filing of an application for variation, filed on 11 May 2020, a document entitled “Opposition against the decision” with a number of attachments. As the Director had not been served with these documents, he only knew about them on 20 May 2020, when this court gave directions to the parties. Since the Director later obtained a copy of the document and its attachments, and had also been granted the right to reply to them, I believe that there is no prejudice caused to the Director by this court treating the said document as the Applicant’s application for variation, and the attachments as documents in support of the application, and I so order. (For convenience, the said document together with its attachments will be referred to as the Applicant’s “Variation Application”).

3. The Senior Legal Aid Counsel for the Director, Ms Fanny Lo, altogether filed three affirmations: a supporting affirmation (Supporting Affirmation) filed together with the Summons, a supplemental affirmation filed on 21 January 2020 (Supplemental Affirmation), and a third affirmation filed on 29 May 2020 (Third Affirmation) in opposition to the Variation Application.

4. The Applicant on 12 June 2020, filed a further document entitled “Replication on behalf of Applicant ATIQ-UR-REHMAN in response to the reply dated 29.05.2020 by Lo Choi Lin Fanny” in reply to the Third Affirmation.

5. Since the Applicant is currently residing in Pakistan and is unable to come to Hong Kong to attend a hearing, I directed paper disposal of the Variation Application.

B. The Summons

6. Pursuant to O 22A, r 1 and 2[1] of the Rules of the District Court (Cap 336H)[2], the Director applies for “payment out of all compensation and interest held in Court according to the Order dated 13 November 2008 (amended on 17 September 2010) to the Director under the Director’s First Charge”.

7. Until the discharge of the Legal Aid Certificates on 24 January 2019, the Applicant was granted Legal Aid with nil contribution in these proceedings, and in a subsequent appeal, CACV 52/2007 (CACV 52/2007), by Parveen Tahira (Unsuccessful Claimant) in a parallel employees’ compensation claim (DCEC 493/2000) (Unsuccessful Claim).

8. The “compensation and interest held in Court” stated in the Summons was (as will be further discussed in Section C below) paid by the Respondent, and, as at 20 May 2019, was in the sum of $2,254,102.00 (Money Held In Court)^{^[3]}. The amount of unpaid taxed costs against the Applicant’s legal-aid account, on the date of the Supporting Affirmation, was in the sum of $2,289,895.84 (Unpaid Costs).

9. The “Director’s First Charge” stated in the Summons refers to the Money Held In Court. Based on s 18A(1)(b) of the Legal Aid Ordinance (Cap 91)^{^[4]}, which provides for a charge on property recovered on an aided person’s account for a sum equal to the deficiency of any unpaid net liability of the Director, the Money Held In Court is therefore property recovered in these proceedings, and is subject to “a first charge for the benefit of the Director”^{^[5]}.

10. It cannot be disputed that the Money Held In Court is “Money remaining in court” within the meaning of O 22A. Since the Applicant was an aided person within the meaning of O 22A r 2(1), any payment of the Money Held In Court, according to O 22A r 2(1) “shall be made only to the Director of Legal Aid without the need for any authority from the party”.

11. According to these undisputed facts and law, I therefore granted, by way of the Nisi Order, an order in terms of the Summons when the adjourned hearing on 31 March 2020 could not be held due to the Covid-19 pandemic.

C. Unpaid Costs

C.1 Costs of the Unsuccessful Claim

12. The genesis of the Unpaid Costs originates from the commencement of these proceedings on 11 January 2001 by the Applicant (through the Legal Aid assigned solicitors the Applicant nominated, Messrs Ng, Lie, Lai & Chan) to claim employees’ compensation on his own behalf and on behalf of the dependents of the Applicant’s brother, Saif-Ur-Rehman otherwise known as Mohammad Shehzad (“Deceased”), who met a fatal accident on 13 December 1999.

13. These proceedings however were adversely complicated by the Unsuccessful Claim originally instituted on 3 June 2000 by Mohammad Hanif, the alleged father of the Deceased. Mohammad Hanif was later substituted by the Unsuccessful Claimant, his alleged daughter.

14. After the trial of these proceedings and the Unsuccessful Claim, a Deputy Judge, on 5 July 2006, dismissed the Unsuccessful Claim and made an indemnity costs order against the Unsuccessful Claimant in favour of the Applicant.

15. Pursuant to an Allocatur dated 13 February 2012, the taxed costs of the Applicant against the Unsuccessful Claimant was in the sum of $1,991,448.16 and the common fund costs were in the sum of $75,398.00. The Director had paid these costs to the Applicant’s assigned Legal Aid solicitors, Messrs Burke & Co (Burke) under the said Allocatur.

16. The Unsuccessful Claimant is liable to pay the two sums of costs stated in the preceding paragraph, but so far no payment has been made. According to the inquiries made by Burke, the Unsuccessful Claimant had left Hong Kong before July 2006 with no known asset. As a result, no enforcement action has been taken.

17. In addition to the two sums of unpaid costs stated in §15 above, there were two further sums of unpaid costs as costs lost to the Respondent, namely $49,600 and $700.^{^[6]} The Director has paid these costs on behalf of the Applicant. Thus, the total amount of unpaid costs the Director has paid on behalf of the Applicant in these proceedings is therefore $2,117,146.16.

18. The Applicant was awarded compensation in the total sum of $1,528,800. On 3 August 2006, the Respondent paid into Court a sum of $2,000,907, representing the compensation and interest. The Applicant’s party and party costs and disbursements against the Respondent were agreed in lieu of taxation.

C.2 Costs of CACV 52/2007

19. Legal Aid was granted to the Applicant to oppose the appeal instituted by the Unsuccessful Claimant. On 22 February 2008, the Unsuccessful Claimant’s application for leave to appeal to the Court of Final Appeal was dismissed with costs to the Applicant.

20. The net amount of costs paid by the Director in CACV 52/2007 on behalf of the Applicant is $272,744.68 with the breakdown as follows:-

(a) Applicant’s party and party taxed costs $392,489.68
(b) Applicant’s taxed common fund costs^{^[7]} $10,561.00
(c) Costs for applying payment out of security of costs $10,495.00
(d) Refund of taxing fee (-) $15,801.00
(e) Receipt of security for costs ordered to be paid by the Unsuccessful Claimant from High Court (-) $125,000.00

The net amount of costs paid by the Director:- $272,744.68

21. For the same reason as stated in §16 above, the Applicant has failed to recover these costs from the Unsuccessful Claimant.

C.3 The net liability

22. On 13 November 2008, an order of apportionment of the compensation among the dependents of these proceedings was made. The court apportioned the employees’ compensation among 7 dependents of the Deceased in equal shares. Apart from a sum of $99,995 (i.e. $14,285 x 7 = $99,995) the court ordered to be paid out from the share of each of the dependents through the Director, the balances of the shares of the compensation in favour of 5 dependents were ordered to remain in court until further order, and those of the 2 minor dependents were ordered to be invested by the Registrar. The minor dependents are now of full age.

23. As discussed above, the total amount of costs the Director had paid (without taking into account the Applicant’s liability for costs paid to the Secretary of Justice in the sum of $9,330[8]) in these proceedings and CACV 52/2007 at the date of the Supporting Affirmation is $2,289,895.84 (i.e. $2,117,146.16 + $272,744.68 - $99,995 being compensation received from District Court).

24. Since the Money Held In Court was $2,254,102.00 (see §8 above), less than the Unpaid Costs of $2,289,895.84 (see §8 and §23 above), there is a deficiency on the aided Applicant’s account. The Money Held In Court is subject to the Director’s first charge.

D. Discussion

25. The reasons for the Variation Application are mainly:

26. Firstly, the conduct of his assigned solicitors, Burke. It is alleged that Burke had “deliberately and purposefully did not recover the costs from the Respondents as ordered by [the] Court and to take easy meal they have filed the applications along with the bogus professional charges, tailor-made certificates specifically prepared by the law firm of the wife of [Burke] which is not only unjust but the same is illegal and against the norms of fairness and impartiality”^{^[9]}.

27. Since the Respondent had satisfied the costs of the proceedings, I believe that the “Respondents” the Applicant referred to in the above quoted passage was meant to be the Unsuccessful Claimant.

28. Secondly, it is alleged that the Applicant and the Deceased’s dependents to whom compensation was awarded suffer financial hardship. The Applicant stated that due to the long period of time the proceedings have taken to recover compensation, not only has his health and financial condition been adversely affected, but also the Deceased’s dependents were forced “to lead a below average life-style”^{^[10]}.

29. Thirdly, the Director, acting through Ms Lo, has allegedly connived with Burke to charge the latter’s costs on the Applicant’s account. The Applicant alleged that the amount of the Director’s First Charge of $2,289,895.84 was “purposefully worked out” to exceed the amount of the Money Held In Court. The Applicant therefore submitted that were the Summons allowed, the Applicant and the dependents would receive nil compensation, and be made to further pay the remaining fees to the Director out of their own pockets.

30. Fourthly, the Director failed to make material disclosure including the failure to make an effort to recover the costs from the Unsuccessful Claimant. It was suggested that the master-mind behind the Unsuccessful Claim was a Mr Tariq (the brother of the Unsuccessful Claimant) who is still living in Hong Kong. The Applicant referred to an email from the previous assigned solicitor, Mr Carey dated 14 January 2011^{^[11]}, in which he suggested that the Unsuccessful Claim might have been financed by, apart from Mr Tariq , also Messrs Quan & Co and their clerk, a Mr Butt. The Applicant stated that these parties were present in Hong Kong but the Director made no effort to recover the outstanding costs owed by the Unsuccessful Claimant.

31. The Applicant therefore submitted that the Nisi Order was obtained by fraud and misrepresentation and it should be set aside, and that the compensation kept in court should not be released to the Director. The Applicant further asked this court to direct the Director to recover the costs from the Unsuccessful Claimant.

32. I have carefully considered the Applicant’s supporting reasons, and have great sympathy for the plight the Applicant and the Deceased’s dependents are subject to. It is trite however that the Money Held In Court is subject to the Director’s first charge. This court is statutorily obliged by O 22A to direct the payment of the Money Held In Court to the Director. The Applicant will need to, once the payment out of the Money Held In Court is made, apply to the Director for the recovery of the Money Held In Court, and to, if necessary, instruct the Director to recover the portion of unpaid costs the Unsuccessful Claimant is liable to pay to the Applicant (through the Director).

33. For these reasons, the Variation Application is dismissed with no order as to costs (as agreed by Ms Lo).

34. I direct the Director to serve a copy of this Decision on the Applicant on the same date of the handing down of this Decision by email, the same mode this court has ordered.

	( Katina Levy )
	District Judge

The applicant is not represented

Ms Lo Choi Lin Fanny for the Director of Legal Aid

[1] All references to the rules in this Decision are, unless otherwise stated, references to the Rules of the District Court.

[2] Order 22A:

“1. Money remaining in court (O 22A, r 1)
(1)    Subject to Order 22, rule 17, any money paid into court in an action (whether or not in accordance with Order 22) may not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action.
(2)    …
2. Person to whom payment to be made (O 22A, r 2)
(1)    Where the party entitled to money in court is a person in respect of whom a certificate is or has been in force entitling him to legal aid under the Legal Aid Ordinance (Cap 91), payment shall be made only to the Director of Legal Aid without the need for any authority from the party.
(2)    Subject to paragraph (1), payment shall be made to the party entitled or to his solicitor.
(3)    This rule applies whether the money in court has been paid into court under Order 22 or under an order of the Court or a certificate of the Registrar”.

[3] A memo dated 20 May 2019 from the Registrar of the District Court to the Director, exhibited as “LCL-23” to the Supporting Affirmation.

[4] All references to the statutory provisions in this Decision are, unless otherwise stated, references to the provisions of the Legal Aid Ordinance.

[5] Section 18A: “Charge on property recovered

(1) Subject to this section—
(a) the amount of a contribution to the extent that it is unpaid; and
(b) except where legal aid has been granted under the Supplementary Legal Aid Scheme, if the total contribution is less than the net liability of the Director on the aided person’s account, a sum equal to the deficiency,
shall be a first charge for the benefit of the Director on any property, whether situated in Hong Kong or otherwise, which is recovered or preserved for the aided person in the proceedings or in any other proceedings in respect of which the person was aided and which, in the opinion of the Director, were substantially related to or connected with the proceedings in which property was recovered or preserved”.

[6] Orders respectively dated 15 March 2007 and 16 September 2010.

[7] Items (a) & (b) pursuant to the Allocatur dated 13 June 2014.

[8] Two orders dated 6 April 2001.

[9] The attachment dated 18 March 2020 to the Variation Application, §4.

[10] Ibid. §7.

[11] Exh “LCL-59” to the Supplemental Affirmation.

56358-EN-2007-03-15

ATIQ-UR-REHMAN v. PAUL Y. - SELI JOINT VENTURE

HTML content

DCEC 493/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 493 OF 2000

_____________

IN THE MATTER OF AN APPLICATION BETWEEN:

	PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased	Applicant
	and
	PAUL Y. – SELI JOINT VENTURE	Respondent

____________

ECC/LA 13300/2000 (DP22)

DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN

	ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased	Applicant
	and
	PAUL Y. – SELI JOINT VENTURE	Respondent

[Consolidated by Order of H.H. Judge Carlson dated 28^th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18^th day March 2005]

Coram: Deputy District Judge K.W. Wong in Chambers

Date of written submission by the Respondent: 12^th & 22^nd February, 5^th March 2007

Date of written submission by the 2^nd Applicant: 16^th February & 5^th March 2007

Date of Ruling: 15^th March 2007

_______________

RULING

_______________

Background

1. On 2^nd January 2007, three applications, including the application of the 2^nd Applicant (“the Applicant in DCEC 30/2001”) to vary certain costs orders made by me in my judgment handed down on 5^th July 2006 (“costs variation application”) were heard by me. By the costs variation application, the 2^nd Applicant seeks to, inter alia, hold the Respondent liable for all the 2^nd Applicant’s costs incurred in proving the deceased’s identity vis-à-vis the 1^st Applicant (“the Applicant in 493/2000”) and that the costs between the 2^nd Applicant and the Respondent be on common fund basis.

2. The Respondent did not contest the basis of taxation being on common fund. It only contested liability for the costs of proving the identity of the deceased. After hearing submissions of parties, I ruled in favour of the Respondent and refused the 2^nd Applicant’s application. My written ruling was handed down on 9^th February 2007.

3. As stated in paragraph 5 of my said ruling, counsel for the two parties had indicated to me that all costs incurred by the 2^nd Applicant against the Respondent after the date of judgment up to and inclusive of the date of order (i.e. the date of my ruling on 9^th February 2007) be paid by the Respondent. To that effect Mr. Wright, counsel for the 2^nd Applicant submitted a hand-written draft which he said were proposed directions agreed by the parties. Mr. Sakhrani, counsel for the Respondent, confirmed to be the case. Necessarily, such agreement is wide enough to cover the costs of the costs variation application: see paragraph 16 of my said ruling. Accordingly, even though the Respondent was successful in substance in opposing the costs variation application, in order not to upset the agreement between the parties through counsel, I make the following order in paragraph 18(ii) of my said ruling:

“the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application, from the date of judgment up to the date hereof, with a certificate for this costs variation application, on a common fund basis, to be taxed if not agreed.”

4. It is this order that triggers off a series of written submissions from the parties concerned.

Re-consideration of the Costs of the Costs Variation Application

5. On 12^th February 2007, Deacons, solicitors for the Respondent, wrote in submitting that the parties had not intended nor agreed that the proposed orders submitted by Mr. Wright should cover the 2^nd Applicant’s costs variation application. In view of such allegation, which apparently contradicted the hand-written proposal handed to the Court during the hearing on 2^nd January 2007, I directed that the 2^nd Applicant’s position be ascertained in order to know whether there had been a slip of the parties. By a letter dated 16^th February 2007, Burke, Fung & Li (“BFL”), solicitors for the 2^nd Applicant, also confirmed that there had been no agreement that the Respondent would shoulder the costs of the costs variation application. Both parties agree and urge the Court to re-consider the costs of the costs variation application.

6. On 28^th February 2007, I directed whether the parties agreed to vary paragraph 18(ii) of my said ruling to the following:

i) save and except the costs of and occasioned by the costs variation application, the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application from the date of judgment up to the date hereof [i.e. the date of ruling], on a common fund basis to be taxed if not agreed;

ii) costs of the costs variation application be re-considered by the Court;
iii) such re-consideration be without a hearing.

7. By two letters both dated 5^th March 2007 respectively from solicitors for the 2^nd Applicant and the Respondent, they basically agreed to the above.

My Re-consideration

8. The reasons for rejecting the 2^nd Applicant’s application have been set out in my said ruling and I do not intend to repeat the same herein. Suffice it to say that I see no merit in the substantive application of the 2^nd Applicant and see no reason why the usual rule of costs to follow the event should be departed from. I have read the further submission by BLF in their letter of 5^th March 2007 but do not consider the submission persuasive. I consider it unfair to suggest that Deacons have to make proposal for a variation of the costs order sought by the 2^nd Applicant. The fact that the 2^nd Applicant is out of the jurisdiction perhaps explains why BFL have difficulty in taking instruction but certainly it does not excuse the 2^nd Applicant’s duty to come up with his proposed directions. My judgment was handed down on 5^th July 2006. It is not until early 2007 that the costs variation application was heard. BFL should have more than sufficient time to take instruction from the 2^nd Applicant. In any event it is the 2^nd Applicant’s application and the onus remains on the 2^nd Applicant to propose how my original orders are to be varied.

9. As the parties concerned have failed to appreciate their proposed agreed directions wide enough to cover the costs variation application, and thus making it necessary for the parties to come back again for further directions, it is fair that there be no order as to costs between the parties for this re-consideration application.

10. In the circumstances, I make the following orders:

i)     paragraph 18(ii) of my said ruling dated 9^th February 2007 be varied to the following:
a)     save and except the costs of and occasioned by the costs variation application, the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application from the date of judgment up to the date hereof [i.e. the date of my said ruling on 9^th February 2007], on a common fund basis to be taxed if not agreed;
b)    the 2^nd Applicant do pay the Respondent costs of and occasioned by the costs variation application with certificate for counsel, to be taxed if not agreed;
ii)     there be no order as to costs between the 2^nd Applicant and the Respondent concerning their application to me for re-consideration of the costs of the costs variation application; and

iii) the 2^nd Applicant’s own costs in the application for re-consideration of the costs of the costs variation application be taxed in accordance with the Legal Aids Regulations.

K.W. Wong
(Deputy District Judge)

Burke Fung & Li (assigned by DLA) for the 2^nd Applicant in the 2^nd Application (DCEC 30/2001)

Deacons for the Respondent in both the 1^st & 2^nd Applications

56033-EN-2007-02-09

ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased v. PAUL Y. - SELI JOINT VENTURE

HTML content

DCEC 493/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 493 OF 2000

___________

IN THE MATTER OF AN APPLICATION BETWEEN:

	PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

__________

ECC/LA 13300/2000 (DP22)
DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN:

	ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

[Consolidated by Order of H.H. Judge Carlson dated 28th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18th day of March 2005]

Coram: Deputy District Judge K.W. Wong in Chambers (open to public)

Date of hearing: 2^nd January 2007

Date of Ruling: 9^th February 2007

______________________

RULING

______________________

1. The respective Applicants of these two Employees Compensation proceedings (DCEC 493/2000 is referred to as “1^st Application” and Parveen Tahira the “1st Applicant” while DCEC 30/2001 is referred to as “2^nd Application” and Atiq-ur-Rehman the “2nd Applicant”) belonging to two unrelated families claimed to be the dependants of the Deceased. On 5^th July 2006 I handed down a written judgment resolving the identity issue in favour of the 2nd Applicant with certain nisi costs orders after a 16-day trial. After my judgment the two Applicants made the following three applications to the Court:

i) the 2nd Applicant’s application by way of letter dated 14th July 2006 from his solicitors, Burke, Fung & Li (“BFL”) to vary certain costs orders of my said judgment (“costs variation application”);

ii) the 1st Applicant’s applications by way of two summonses respectively dated 31st August and 6th September 2006 in the two proceedings herein for leave to appeal against my said judgment (“leave to appeal application”); and

iii) the 2nd Applicant’s application by way of summons dated 21st December 2006 against the 1st Applicant for security for costs of the appeal, if leave to appeal is granted to the 1st Applicant (“security for costs application”).

Costs Variation Application

2. By the said letter, BFL on behalf of the 2nd Applicant wrote to my clerk copied to the 1st Applicant and the Respondent stating that the 2nd Applicant wished to be heard in relation to the issue of costs, and in particular, my orders which were incorporated as paragraphs 2, 6 and 7 of the sealed judgment respectively as follows:

i) judgment be entered for the 2nd Applicant together with the dependents named in the 2nd Application (DCEC 30/2001) against the Respondent for the sum of $1,528,800.00 under the Employees’ Compensation Ordinance (“ECO”), Cap 282 plus interest at half judgment rate from the date of accident to the date of judgment, plus costs of the 2nd Application against the Respondent up to and inclusive of 18th November 2005, the date on which the Respondent made the unconditional open offer to the successful Applicant;

ii) there be an order nisi that the Applicant in the 1st Application (DCEC 493/2000) do pay all costs of and occasioned by the Applicant in the 2nd Application (DCEC 30/2001) in proving the identity of the Deceased, including the costs of this trial, on an indemnity basis, together with certificate for counsel, to be taxed if not agreed; and

iii) there be an order nisi that the 2nd Applicant’s own costs in the 2nd Application and incurred in proving the identity of the Deceased vis-à-vis the 1st Application be taxed in accordance with Legal Aid Regulations.

3. The 2nd Applicant did not specify in the said letter to what extent the said costs orders were to be varied. Mr. John Wright, counsel for the 2nd Applicant submitted that since the 1st Applicant did not have any identifiable income and assets, any order against the 1st Applicant for costs would very likely remain unsatisfied at the end of the day. As such, on grounds to be set out in the following paragraphs the 2nd Applicant sought to hold the Respondent liable for all cost incurred by the 2nd Applicant in proving his identity vis-à-vis the 1st Applicant. Furthermore, Mr. Wright submitted the costs between the 2nd Applicant and the Respondent should be on a common fund basis.

4. The above three costs orders affect the 1^st Applicant and the Respondent. Miss Angela Gwilt, counsel for the 1st Applicant informed the court that she had no instruction to oppose or support any variation of costs order. Mr. Ashok Sakhrani, counsel for the Respondent submitted that the Respondent did not seek to vary these costs orders. On the other hand, while the Respondent had no objection to the costs between the 2nd Applicant and the Respondent being on common fund basis, he submitted that there was no basis the Respondent be held liable for costs of the 1st Applicant simply because the latter had no means to satisfy the costs order.

5. At the hearing I invited Mr. Wright to draw up his proposed costs orders for consideration of the Respondent. The following proposed orders were later submitted to the Court by Mr. Wright:

i) all costs of the action up to 18th November 2005 including the costs incurred by the 2nd Applicant as against the 1st Applicant and the costs incurred by the 2nd Applicant as against the Respondent be paid by the Respondent to the 2nd Applicant, the costs to be paid on common fund basis, to be taxed in default of agreement;

ii) all costs incurred by the 2nd Applicant against the Respondent after the date of judgment up to and including the date of the order to be made herein, be paid by the Respondent to the 2nd Applicant on a common fund basis to be taxed in default of agreement;

iii) all costs of and incidental to the 2nd Applicant’s application for approval of apportionment and payment out, be paid [by the Respondent] on a common fund basis, to be taxed if not agreed;

iv) the Applicant in the 1st Application (DCEC 493/20000) do pay all costs of and occasioned by the Applicant in the 2nd Application (DCEC 30/2001) [from and inclusive of 19th November 2005 onward to the date of judgment] [[of the trial]] on an indemnity basis, together with certificate for counsel, to be taxed if not agreed.

6. The words in square brackets are added by me after clarification with Mr. Wright. The phrase in double square brackets was the original drafting of Mr. Wright which I have difficulty to understand. Despite my clarification I still have difficulty to understand how the proposed order in paragraph 5(iv) above improves my costs order repeated in paragraph 2(ii) above. Mr. Sakhrani agreed to paragraphs 5(ii) to (iv) but opposed paragraph 5(i) above.

7. Mr. Wright’s grounds for holding the Respondent liable for the 2nd Applicant’s costs in proving identity can be summarized as follows:

i) it was not until 18th November 2005 that the Respondent admitted the Deceased’s death arising out of and in the course of employment. Prior to that the Respondent put the 2nd Applicant to strict proof of each and every relevant facts. As such the 2nd Applicant was forced to prove all facts including those relating to the Deceased’s identity. The Respondent allowed the matter to drag on and therefore had to pay for the costs incurred; and

ii) the claim for compensation under the present two claims were under the old scheme of the ECO where a dependent’s claim can be one of total or partial dependency. The 2nd Applicant’s claim was based on total dependency whereas that for the 1st Applicant was partial dependency, which if successful, would end up in the Respondent paying less. The Respondent gained advantage by betting on two horses with a hope that Respondent could save a lot of money if the winner was the 1st Applicant. That was unreasonable and the Respondent should have made payment into Court subject to resolution of the Deceased’s identity.

8. I have listened carefully to Mr. Wright’s submission and the documents which he has taken me through. With due respect I really do not consider Mr. Wright’s submission attractive and am not persuaded.

9. Firstly, the fact that the 1^st Applicant has no means to satisfy the costs ordered against her is no reason for holding the Respondent liable for that part of the costs.

10. Secondly, the part of the costs in question is the costs of and occasioned by the 2nd Applicant in proving the Deceased’s identity and not costs of the 2nd Application. If there is any delay in the admission of liability by the Respondent in the 2nd Application whereby extra costs are incurred, no doubt it is fair to hold the Respondent liable for these extra costs together with interest on the compensation, and I have already so ordered. Mr. Sakhrani in fact also conceded on this ground in his submission. However, payment of costs incurred in the identity issue is a totally different matter.

11. Thirdly, as pointed out by counsel for the Respondent, although the Respondent put the 2nd Applicant to strict proof of everything in the pleadings, the Respondent has basically admitted each and every element required to be proved under section 5 of the ECO. It is obvious from the Form 2 filed by the Respondent with the Labour Department that the name of the Deceased, his employment relationship with the Respondent, the date of his accident, the fact that the accident occurred in the course of employment and name of his father have all been admitted by the Respondent. I do not consider the Respondent raising any serious challenge to the identity of the Deceased. All particulars of the Deceased then known to the Respondent have been stated in Form 2. As such, if not for a competing applicant, the 2nd Applicant should have no difficulty in establishing his claim. For a claim under the ECO, it is simply unnecessary under normal circumstances for an applicant to adduce evidence concerning the deceased’s educational background, his family life and history, correspondence with other family members and even details of his funeral. The extra costs incurred in proving identity are solely brought about by the 1st Applicant, and not the Respondent.

12. Fourthly, there should not be any surprise to the 2^nd Applicant that the identity issue will be hotly contested. According to evidence revealed at trial of the identity issue, the 2^nd Applicant initially had a deal with Hanif (see paragraphs 53 to 60 of my Judgment) whereby they jointly claimed compensation from the Respondent. He even corresponded with Boase, Cohen & Collins (“BCC”) when the 1^st Application was first lodged with the Court (see paragraph 63 of my Judgment). So when he decided to make a second application, no doubt he would be expecting a huge dispute on this issue, an issue which only the two Applicants know best and an issue which will have a serious implication, in term of criminal liability, on the losing Applicant. In my judgment, this is also an issue which only the two Applicants can solve. On the other hand, there is no evidence whatsoever to suggest that the Respondent knew anything about their previous deal and the actual identity of the Deceased. It is the 1^st Applicant’s claim that makes the trial of the identity issue necessary.

13. Fifthly, the identity evidence of the two Applicants is so diametrically different and irreconcilable. I do not think the Respondent has any clue at all who is telling the truth because documents purporting to be issued by relevant authorities of Pakistan have been adduced by both Applicants. I do not believe that the trial of the preliminary issue could have been avoided even though the Respondent had made an early payment into Court in the manner suggested by Mr. Wright. In the circumstances, it is totally unfair and unreasonable to say that the Respondent is betting on two horses. I agree to Mr. Sahkrani’s submission that the Respondent simply do not have the formbooks of the horses.

14. Sixthly, there are simply no applicable rules of court for payment into court in the manner suggested by Mr. Wright. In the course of submission Mr. Wright has suggested that at some time of the proceedings the 1^st Applicant could not be located. As such payment by the Respondent to them or into Court at that time should be feasible. I consider that it will be too harsh to the Respondent if they are expected to make such judgment without the benefit of cross-examination of key witnesses on factual disputes, particularly when the competing Applicants have produced a number of documents purporting to be genuine.

15. By reasons of the above I do not consider it fair in the circumstances to hold the Respondent liable to the 2^nd Applicant for costs of proving identity of the Deceased vis-à-vis the 1^st Applicant. Amendment proposed by the 2^nd Applicant along the line of paragraph 5(i) is hereby refused.

16. Mr. Sakhrani had agreed to the proposed orders set out in paragraph 5(ii) and (iii) above. On a fair reading of the proposed orders set out in paragraph 5(ii), the Respondent has in fact by this agreement agreed to pay the costs of this costs variation application even the Court ruled against the 2^nd Applicant. Since this is what the parties have agreed, I do not intend to upset a term which has been agreed.

17. As regards the proposed order set out in paragraph 5(iv) above, the 2^nd Applicant made no submission in support. Although the Respondent agreed to it, it really does not concern the Respondent. I do not consider there is any basis in support of this proposed order and accordingly, I refuse to include this as part of the costs order.

18. I now make the following order:

i) the costs order repeated in paragraph 2(i) above be varied from party and party basis to common fund basis;

ii) the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application, from the date of judgment up to the date hereof, with a certificate for counsel for this costs variation application, on a common fund basis, to be taxed if not agreed;

iii) the Respondent do pay all costs of and incidental to the 2^nd Applicant’s application for approval of apportionment and payment out, on a common fund basis, to be taxed if not agreed; and

iv) application to hold the Respondent liable for the costs of and occasioned by the 2^nd Applicant in proving the identity of the Deceased, including the costs of the trial referred to paragraph 6 of the sealed judgment (repeated as paragraph 2(ii) above) be refused; and

v) the 2^nd Applicants own costs for this costs variation application be taxed in accordance with Legal Aid Regulations. For the purpose of taxation, the entire morning on 2^nd January 2007 be apportioned to the hearing of this costs variation application.

Security for Costs Application

19. Miss Gwilt submitted that the 1^st Applicant intends to oppose the said application of the 2^nd Applicant if leave to appeal is granted by this Court. However, if leave is not granted, it will not be necessary for the parties to incur costs on the matter.

20. At the hearing, I made the following orders after hearing preliminary submissions from counsel:

i) the 1^st Applicant’s summons for security for costs is to be adjourned sine die with liberty to restore for argument in the event leave is granted in favour of the 1^st Applicant with three hours reserved;

ii) in the event leave to appeal is granted, there be leave to the 1^st Applicant to file and serve an affirmation in opposition within 28 days after the date of handing down of my ruling;

iii) the 2^nd Applicant is at liberty to file and serve an affirmation in reply within 28 days thereafter;

iv) there be no further affirmation to be filed and used by the parties without leave of the Court; and

v) the costs of this application be reserved.

Leave to Appeal Application

21. This application concerns mainly the two Applicants. The 1^st Applicant set out in her two summonses two identical sets of 14 numbered paragraphs of grounds of appeal. These grounds can broadly be grouped under the following two main grounds:

i) I was wrong in accepting the evidence adduced in support of the Deceased being Saif-ur-Rehman and rejecting evidence in favour of Mohammad Shahzad; and

ii) new evidence respectively from Mr. Boase of BCC, the solicitor acting for Hanif and Tahira in the 1^st Application and from Tariq who produced a document purported to be the official death registration record of Saif-ur-Rehman emerges. In the light of the new evidence, I was wrong in concluding the Deceased being Saif-ur-Rehman.

22. There seems to be no dispute between the Applicants that the proper test for leave to appeal application is whether there is a “real prospect of success”. This test is in fact set out in Smith v CosworthCasting Processes Limited [1997] 1 WLR 1538. Miss Gwilt for the 1^st Applicant submitted that the approach is for the Court to form a preliminary view of the prospect of success taking into consideration the new evidence. The test has a low threshold and therefore the Court should only refuse leave when satisfied that the 1^st Applicant has no prospect of success. For completeness sake, the principles set out in Smith v Cosworth by Lord Woolf, MR, are set out as follows:

“i) The Court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii) the court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

These principles were cited with approval by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999. The 1^st Applicant is relying on the first limb of the Smith v Cosworth principles.

23. Concerning the first ground of appeal, after reading the details set out in the summonses the 1^st Applicant is basically saying that I have wrongly preferred the evidence of the 2^nd Applicant against the weight of evidence put in by her. It is an appeal against my finding of facts. In order to succeed on a challenge of facts on appeal, the 1^st Applicant has to overcome a very high hurdle. At the hearing the 1^st Applicant has not shown to me that my conclusion is unsupported by evidence or that it contradicts any incontrovertible evidence. Nor has the 1^st Applicant identified concisely and precisely which part of said judgment goes wrong. I do not think the 1^st Applicant has made out a good case.

24. The principles upon which the appellate court will upset the primary findings of facts based on credibility of witnesses and assessment of damages are well settled. In Hong Kong such principles have been set out by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 663 and reiterated by Woo VP in Tin Kwong International Enterprise Company Limited & ors v San Tung & anor (unreported, CACV 164/2005, 17^th January 2006,). The said principles have been helpfully summarized by Woo VP in Tin Kwong (at paragraph 14) as follows:

i) if the Court of Appeal is to reverse the trial judge’s decision on the facts, it “must not merely entertain doubt whether the decision below is right, but be convinced it is wrong”;

ii) the Court of Appeal will certainly not disturb the judge’s finding of primary fact where they are based on the credibility of witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand;

iii) in order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either (1) that there is no evidence to support it; or (2) that is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was “contrary to the weight of the evidence”. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.

25. Applying the above principles, I really do not consider the 1^st Applicant has any realistic prospect of success on the 1^st ground.

26. As for the 2^nd ground, the “new evidence’ is contained in two affidavits. The 1^st Applicant caused to be filed an affidavit of Mr. Boase to be sworn on 14^th December 2006 and filed on 16^th December 2006 (“Boase’s Affidavit), only about two weeks before the hearing but more than three months after the summonses were issued. In the Boase’s Affidavit, he said that it was Atiq who visited him at his office on 16^th May 2000. Atiq was then well-dressed and said he was helping his father’s life-long friend, Hanif, whose son called Shahzad died in an industrial accident. Atiq alleged he would be visiting Hong Kong for business many times a year, speaking better English and versed in dealing with legal matters, he wanted to see what his firm could do for this case. The next day (17^th May), Atiq returned with Tariq who was introduced to him as the younger brother of Shahzad. Two days later (19^th May), the two returned with Hanif who was introduced as father of the family. Particulars of family members were given. It was also said that a HK$5,000 would be deposited with the firm’s account. Mr. Boase said that it was Atiq, who spoke good English and did the translation of a letter prepared by his firm to Hanif and Tariq. Boase was suggesting that Atiq spoke better English than Tariq. He said at no time Atiq had said anything that Shahzad was a member of his family or said something to cast doubt on what Hanif and Tariq said about Shahzad being a member of Hanif’s family. Atiq later returned to Pakistan. Hanif and Tariq later instructed Tariq would be the main contact and whenever there were any enquiries from Atiq, Mr. Boase should refer them to Tariq.

27. The fact that Atiq lodged a similar claim came to Boase as surprise. Later on 3^rd October 2000, Tariq brought Mr. Abdul Rehman to his office whose affirmation was then prepared and later filed with Court. He also made certain comments on the way the Legal Aid Department and the 2^nd Applicant handled the matter. He also expressed his views on certain application made to the Legal Aid Department and to this Court. These parts were not directly relevant to the issues in question and are not repeated herein.

28. The other affidavit was filed by Tariq on 28^th December 2006, although it was sworn some four months ago on 29^th August 2006. Tariq said that he had been advised by his lawyers Quan & Co to gather more documents. He had tried to obtain school attendance record and public record about Atiq’s brother Saif. However he could not be able to get any. He said he was in contact with Madam Razia, the stepmother of Atiq and the widow of Abdul Rehman. He deposed that Madam Razia had been kicked out of her residence after the death of Abdul Rehman. After his continuing pressing in April 2006, he said Madam Razia gave his friend Mr. Muhammad Ali Khan some documents who in turn showed the documents to him. He found out that among these documents, there was a death certificate issued by the Municipal Office of Gujranwala of a person called Saif whose father was Abdul Rehman. The date of death was 18^th December 1989. A copy of the death certificate together with the English translation was also exhibited.

29. In order to assess whether there is really no real prospect of success in the appeal that leave should be refused, the Court has to assess whether the appellate court will be likely to receive fresh or further evidence in the appeal. The test is again well settled. The three conditions in Ladd v Marshall [1954] 1 W.L.R. 1489 which can be summarized as follows, must be satisfied:

i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

ii) the evidence must be such that, if given, would probably have an important influence on the result of the case, although it needs not be decisive; and

iii) the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible although it need not be incontrovertible.

30. I do not think the evidence of Mr. Boase can add anything to the 1^st Applicant’s case. His evidence has basically been covered by Hanif and Tariq at trial. His evidence is not inconsistent with that adduced by Atiq. It is Atiq’s evidence that he had an agreement initially with Hanif to claim compensation: see paragraph 54 of my judgment. He also approached BCC for the purpose of instructing solicitors to do the claim: see paragraph 61 of my judgment. In order to carry into effect that agreement the Court would not be surprised to hear Atiq telling Mr. Boase that Hanif was the Deceased’s father and Tariq the Deceased’s brother. As such, although Boase’s affidavit appears to satisfy the 3^rd condition of Ladd v Marshall, the 2^nd condition is not satisfied.

31. There is no explanation as to why Mr. Boase’s evidence cannot be given earlier. The 1^st condition of Ladd v Marshall is not satisfied.

32. As regards Tariq’s evidence, he said in his affidavit that he has been pressed by his solicitors Messrs. Quan & Co. to gather more documents before trial. He also said he knew Atiq had a brother called Saif. It appeared that he was well aware of these facts and had informed his lawyers. But he said “he could not get any confirmation of this from the Public Office in Pakistan.”: see paragraph 3 of Tariq’s Affidavit. There is no mention at all of the effort of Tariq or his solicitors having ever approached the relevant authorities for the death certificate of Saif. The 1^st Applicant seems to suggest the discovery of the death certificate is rather accidental.

33. In fact, according to the statement by Abdul Rehman filed with Court as early as 2^nd May 2002 when the 1^st Applicant and Hanif was represented by BCC, Abdul Rehman alleged that he had a son called Saif who had passed away because “a disease affected Saif-ur-Rehman and he died in 1989”. So these “facts” are not new to the 1^st Applicant. It was made known to the 1^st Applicant, the latest by mid 2002. The 1^st Applicant could have made application for the relevant certificate, either herself, or through her family members or even Abdul Rehman. Why the alleged death certificate cannot be adduced earlier remains unexplained. Obviously the first condition of Ladd v Marshall is not met.

34. Miss Gwilt submitted that all along the 1^st Applicant’s position is that Saif and Shahzad are two different persons and the Deceased is Shahzad. This death certificate serves to explain at least, inter alia, why the 2^nd Applicant cannot produce at trial photos showing a teenage Saif with Atiq’s family. It is because he died young. It is also not inconsistent with reports of the Pakistan Police, as they had not said they had checked with the death registry. It is therefore an important document and condition two of Ladd v Marshall can be satisfied.

35. One of the particular features of this case is that there are many documents purporting to be issued by the relevant Pakistan authorities saying that the Deceased being Shahzad. These documents include birth certificate, passports and identity card. There is also the Hong Kong identity card of Shahzad. At trial, these documents were weighed against the other sets of documents, including documents also purporting to be issued by the Pakistan authorities showing the Deceased being Saif. As such, in the special circumstances of this case one really cannot take these “official documents”, including the death certificate of Saif now produced by Tariq, as evidence of truth of the contents. I will not say this death certificate is unimportant but definitely I do not consider it having an important influence on the outcome of the result. It is merely one of the many documents that goes to the weighing pan for the 1^st Applicant. Based on the analysis of facts set out in my said judgment, and for the reason set out in the following paragraph, I do not think such death certificate adds anything of substance to the 1^st Applicant’s evidence. The second condition of Ladd v Marshall is not satisfied.

36. It is noted that the death certificate produced by Tariq has the following peculiar features:

i) the document was attested by one GULZAR AHMED, the Assistant Protocol Officer of the Ministry of Foreign Affairs at Lahore. The date of attestation written thereunder was “19-11-06”, i.e. 19^th November 2006. The attestation part is marked “A” on the certificate. Next to this part it is stated that the “signatures & seal” of the attestation part was verified by one MAZHAR JAVED, Consul (Consular) of the Consulate General of Pakistan in Hong Kong. The date chopped thereunder, which is apparently the date of verification, is 28^th April 2006. No doubt the verification should come later in time than the attestation but why it bears an earlier date? This discrepancy on this death certificate has not been explained;

ii) again, Tariq sworn the affidavit on 29^th August 2006. How can he then possess a document attested in Pakistan on 19^th November 2006?

iii) It is strange to note that the informer of the death of Saif is recorded on the death certificate as Atiq instead of his father, Abdul Rehman;

iv) when the certificate was attested in 2006, Abdul Rehman had already passed away. It would be inconceivable that it is Madam Razia, who Tariq has described as “uneducated” and could ‘neither write nor read” who showed interest and then applied for attestation of the death certificate of a son who has died before her marriage with Abdul Rehman. Neither is it conceivable that it is she who has submitted the death certificate for verification by the Pakistan Consulate General of Hong Kong. Tariq has not explained whether it is he who asked Abdul Rehman or Madam Razia to obtain the death certificate. If it is upon Tariq’s request that Abdul Rehman or Madam Razia applied for the death certificate, he has never mentioned that in his evidence, either in the form of written statements or oral testimony in court; and

v) the verification by the consulate general of Pakistan in Hong Kong only relates to the signature and the seal of the attesting officer and apparently not the contents of the certificate.

37. In light of the peculiarities set out in the preceding paragraph, the death certificate purporting to relate to Saif should be received with caution and scepticism. In my judgment, I do not think the contents of the document are apparently credible, and thus the third condition of the Ladd v Marshall test is also not satisfied.

38. By reasons of the above, my assessment is that the new evidence is unlikely to be accepted by the appellate court. I do not consider there is any real prospect of success on these intended grounds of appeal. I therefore dismiss the two summonses of the 1^st Applicant.

39. There is no reason why costs should not follow event. I therefore grant a costs order nisi that the 1^st Applicant do pay the 2^nd Applicant’s costs of the Leave to Appeal Application with certificate for counsel, to be taxed if not agreed. The 2^nd Applicant’s own costs in the Leave to Appeal Application be taxed in accordance with the Legal Aids Application.

40. In view of my decision in the leave to appeal application, I do not think it is necessary for this Court to deal with the 2^nd Applicant’s substantive application for security for costs further, save and except the issue of costs of that application. I therefore make an order that the parties be at liberty to apply generally in respect of the security for costs application in the event the outstanding matters, including the issue of costs of that application, cannot be sorted out between them by agreement.

(K.W. Wong)
Deputy District Judge

Miss Angela Gwilt instructed by Quan & Co for the 1^st Applicant in the 1^stApplication (DCEC 493/2000).

Mr. John Wright instructed by Burke Fung & Li (assigned by DLA) for the 2^nd Applicant in the 2^nd Application (DCEC 30/2001).

Mr. Ashok Sakhrani instructed by Deacons for the Respondents in both the 1^st and 2^nd Applications.

53143-EN-2006-07-05

ATIQ-UR-REHMAN v. PAUL Y. - SELI JOINT VENTURE

HTML content

DCEC 493/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 493 OF 2000

______________________

IN THE MATTER OF AN APPLICATION BETWEEN:

	PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

______________________

ECC/LA 13300/2000 (DP22)

DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN:

	ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

______________________

[Consolidated by Order of H.H. Judge Carlson dated 28^th December 2001 and de-consolidated by Order of H.H. Judge Ng dated 18^th day of March 2005]

Coram: Deputy District Judge K.W. Wong in Court

Dates of Trial: 5^th to 9^th, 12^th to 14^th, 16^th and 23^rd December 2005, 26^th, 27^th, January 1^st, 2^nd and 3^rd February and 23^rd March 2006

Date of Handing Down Judgment: 5^th July 2006

______________________

JUDGMENT

______________________

1. This is an unusual case. Two unrelated families emerge and claim to be dependants of a Pakistani worker who was fatally injured on 13^th December 1999 and subsequently died on 15^th January 2000 in an explosion which occurred in a sewage tunnel then under construction. It is common ground of all parties in these two Applications that the injury causing death arose out of and in the course of the Deceased's employment.

2. DCEC No. 493/2000 (“1^st Application”) was initially commenced by one Mr. Mohammad Hanif (“Hanif”), a Hong Kong resident who claimed to be the father of the Deceased known by the name of Muhammad Shahzad (“Shahzad”). The action was taken out on 3^rd June 2000, less than five months after the death of the Deceased. It was later said by his solicitors that Hanif had left Hong Kong and legal aid was subsequently granted to his daughter, Madam Tahira Parveen (“1^st Applicant”). The 1^st Application was amended and an order was made by consent on 16^th April 2002 for, inter alia, the 1^st Applicant to substitute for Hanif to sue in her own right and on behalf of all other dependants of the Deceased in the Hanif's family. The dependants (together with Hanif are referred to as “Hanif's family”), after the amendment, are:

i) Muhammad Bibi (“Madam Bibi”), mother of the Deceased, partial dependant;
ii) Tahira Parveen (“1^st Applicant”), elder sister of the Deceased, partial dependant;
iii) Musrat Bibi, younger sister of the Deceased, partial dependant;
iv) Shaheen Asiya (“Asiya”), younger sister of the Deceased, partial dependant;
v) Shahzadi Sophia, younger sister of the Deceased, partial dependant;
vi) Shahzadi Erim, younger sister of the Deceased, partial dependant; and
vii) Haseeb-ur-Rehman, younger brother of the Deceased, partial defendant.

Hanif and two of his sons, Tariq Mahmood (“Tariq”) and Muhammed Waqas (“Waqas”) are not claiming as dependants of the Deceased.

3. Legal aid to the 1^st Applicant was revoked on 17^th January 2003. On the other hand, legal aid has been granted to one Mr. Atiq-Ur-Rehman (“2^nd Applicant”) on 4^th January 2001.

4. The Application in DCEC 30/2001 (“2^nd Application”) was taken out on 11^th January 2001, about one year after the death of the Deceased, by the 2^nd Applicant who claimed to be the elder brother of the Deceased. The 2^nd Applicant said that the Deceased should be called Saif-Ur-Rehman (“Saif”), son of Abdul Rehman. Saif used the identity of Muhammad Shahzad and as son of Hanif, to gain immigration clearance to enter and work in Hong Kong. It is also the 2^nd Applicant's case that the entry into Hong Kong by the Deceased was orchestrated by Hanif's wife, Madam Bibi, on payment of money by the Deceased to her in Pakistan. After receiving the money, Madam Bibi procured various forged documents to be made for the purpose of obtaining a Pakistan passport by the name of Muhammad Shahzad. It is therefore the 2^nd Applicant's case that Saif and Shahzad in fact refers to one and the same person, i.e. the Deceased. The 2^nd Application was issued for and on behalf of the following seven persons (“Atiq's family”):

i) Atiq-ur-Rehman, i.e. the 2^nd Applicant, the elder brother of the Deceased, partial dependant;
ii) Saima Atiq, wife of 2^nd Applicant, partial dependant;
iii) Faiz-Ur-Rehman (“Faiz”), younger brother of the Deceased, total dependant;
iv) Farha Rehman (“Farha”), younger sister of the Deceased, total dependant;
v) Amina Rehman (“Amina”), younger sister of the Deceased, total dependant;
vi) Armin Balqees Rehman (“Armin”), daughter of the 2^nd Applicant, partial dependant;
vii) Nofil Atiq (“Nofil”), son of the 2^nd Applicant, partial dependant.

The 2^nd Applicant's parents, Madam Balquees and Mr. Abdul Rehman, respectively passed away in 1994 and 2003.

5. The 1^st Applicant's reply is that Shahzad and Saif are not the same, but two different persons. The 2^nd Applicant stole away the documents from Hanif and fabricated a false story with a view to steal the employees' compensation from the Hanif's family. The 1^st Applicant had produced a written statement from Mr. Abdul Rehman, the father of Atiq and Saif, to confirm that his son Saif died in 1989 and Atiq invented the whole story about Saif out of greed. Unfortunately Mr. Abdul Rehman died before the date of trial. It is common ground that there is only one dead body. Clearly one side is lying. The preliminary question for the Court is this: who is the Deceased?

Previous Court Directions

6. This preliminary question cropped up as early as the 2^nd Application was commenced. On 5^th September 2001 H.H. Judge Yung ordered that the two applications be tried together subject to further directions of the Court. On 28^th December 2001, H.H. Judge Carlson directed, inter alia, the two applications be consolidated and the issue of liability and quantum be tried together. It was also ordered that there be mutual discoveries and interrogatories between the two Applicants. Furthermore, although Hanif opposed as a matter of principle that he should not be subjected to a DNA test for the purpose of determining the parentage, the 1^st Applicant was directed by the said order of H.H. Judge Carlson to submit for a DNA test and each party do bear their own costs of such tests. No such test is carried out at the end because the tissue of the Deceased kept by the Queen Mary Hospital had degraded. On 18^th March 2005, H.H. Judge Ng deconsolidated the two Applications but they were to be tried together.

7. On 15^th November 2005, less than 3 weeks before the scheduled trial, the Respondent made known to the two Applicants through their respective solicitors that it was willing to pay up to the maximum sum of HK$1,528,800.00 (HK$18,200.00 x 84) under the Employees' Compensation Ordinance, Cap 282 or a sum assessed by the Court (subject to deduction of any advanced payment) plus interest at half judgment rate from the date of accident to the date of judgment, plus costs of the successful Applicant to a date to be determined by the Court. Such amount is based on the rounded-up pre-accident monthly earnings of the Deceased pleaded in both applications. The Respondent made an application on the same day for, inter alia, dispensing with its attendance of the trial. On 17^th November 2005, H.H. Judge Ng made an order accordingly save and except that the Respondent do have leave to attend for final submissions on the issue of quantum and costs. The costs of and occasioned by that application were reserved to the trial judge.

8. After the last order made by H.H. Judge Ng as aforesaid, the Respondent further offered in open letter of 1^st December 2005 to the two Applicants that apart from not contesting the issues of quantum and liability, it would also not contest any issue of dependancy. It was willing to pay the sum of HK$1,528,800.00 together with costs as aforesaid to the successful Applicant without any deduction of any advance payment. So this trial is mainly for trial of the preliminary issue, namely, which of the Applicants represent the rightful dependants of the Deceased, or in other words, who is the Deceased, Saif or Shahzad?

9. The determination of the preliminary issue turns entirely on facts. The two Applicants called a total of 9 witnesses and their evidence lasted for 15 days. A lot of documents particularly those purporting to belong to the Deceased or used to facilitate Saif acquiring the identity of Shahzad and Pakistan Police reports were adduced as evidence by the 2^nd Applicant. Every factual issue is hotly contested. Witnesses were heavily cross-examined. Credibility of the witnesses and their explanations given in relation to a document are crucial.

Evidence of the Parties

10. Witnesses of the two Applicants have all provided written statements and/or affirmations before they gave evidence. By agreement of the counsel for the Applicants, the witnesses can adopt those parts of the statement the contents of which are not in much dispute. However, these witnesses would be led by counsel when they come to contentious matters. On some occasions, they were expressly not allowed to refer to their witness statements when being cross-examined.

11. The 2^nd Applicant called a total of five witnesses at trial. They were:

i) the 2^nd Applicant;
ii) Mr. Safdar Ali Malik (“Director Malik”), Deputy Director of the Special Investigation Unit of the Federal Investigation Agency, Islamabad of the Islamic Republic of Pakistan;
iii) Mr. Rashid Farooq (“Rashid”), a friend of the 2^nd Applicant; and
iv) Mr. Mahbood Khan (“Mahbood”), a colleague of the Deceased in Hong Kong; and
v) Mr. Ahmed Tanvir (“Tanvir”), another colleague of the Deceased in Hong Kong.

12. The 2^nd Applicant, Director Malik and Rashid particularly flew from Pakistan to give evidence for the hearing.

13. The 1^st Applicant called a total of four witnesses to testify at trial. They were:

i) the 1^st Applicant;
ii) Hanif, father of the 1^st Applicant and the Deceased;
iii) Tariq, son of Hanif and younger brother of the Shahzad;
iv) Mr. Waheed Siddiq (“Waheed”), a friend of Hanif, Tariq and the Deceased.

Counsel for the 1^st Applicant has expressly confirmed the Court that the 1^st Applicant was not relying on evidence contained in statements of other witnesses who did not give evidence in Court.

14. Both counsel agreed that documents in the Agreed Bundles were to be admitted as evidence, subject to challenge as to contents and weights to be attached. These documents were contained in two separate sets of bundles – Bundle of Agreed Documents (1^st Application) comprising 107 pages and Bundle of Agreed Documents (2^nd Application) comprising 658 pages. I accept these documents as evidence, subject to my exclusion and attachment of weight to them after I had heard evidence from witnesses. I also admit as evidence the DVD of Atiq's wedding played for Hanif's comment when it was his turn to give evidence. Many exhibits annexed to witness statements were contained in these two agreed bundles.

15. The 2^nd Applicant elected to commence his case first. As this case turns on facts, I will set out the evidence of each side in detail in this judgment.

The Two Diametrically Different Stories

2^nd Applicant's Evidence

16. According to Atiq, he was the eldest son of Abdul Rehman. There were 4 sons and 2 daughters born of his parents. The Deceased was the 3^rd child of the family and was born on 6^th October 1973 in his hometown of Gujranwala. Gujranwala was about 60 km north of Lahore in the province of Punjabi, Pakistan. Saif was about three and half years younger than him. The family lived in Gali Haji, Ahmed Wali, Khokherki, Gujranwala, Pakistan.

17. He produced certified copy of the Birth Registration from the Register (in Urdu together with certified English Translation) obtained from the Office of the Municipal Corporation in Gujranwala (pages 47 and 48 of the Witness Statement Bundle and pages 1 and 2 of the Bundle of Agreed Documents (2^nd Application)). It is noted that the recorded date of birth of Saif was 6^th October 1973 and the birth was registered with the Municipal Office 2 days later, i.e. on 8^th October 1973. The name of father was recorded as Abdul Rehman, son of Ahmed Din.

18. Atiq said that in Pakistan, birth certificate was a necessity for going to school, particularly Government schools. If one did not register the birth of a child, one would have problem because schools required seeing one's birth certificate before admitting the child.

19. The Deceased, by the name of Saif, first studied in Nursery Class of St Peter's English High School, then St. Peter's English High School and later St. Peter's School. Originals of schools reports from nursery class, and then from 1979 up to 1986 all by the name of Saif were produced by Atiq (pages 3 to 14 of the Bundle of Agreed Documents (2^nd Application)). The Deceased then pursued religious studies of the Quran for about 2 and half years in a religious school up to about 1990 (pages 21 and 22 of the Bundle of Agreed Documents (2^nd Application)). A leaving certificate was produced. The Deceased then attended the Government Comprehensive School in Gujranwala for 2 years between 1990 and 1992. It was Atiq's evidence that after the aforesaid study, the Deceased entered the Gujranwala Government College in 1992 studying for a Bachelor of Arts Degree. He did manage to finish the second year study and sit for an examination in 1994. He also finished part of his 3^rd year study but did not complete his college study and went to Hong Kong in 1995.

20. Atiq said that his brother Saif was a good friend of Tariq, the son of Hanif. Although Atiq stated in his witness statement that Saif and Tariq studied in the same Government College, at trial he admitted they used to study in the same school but he was not sure whether or not they studied in the same Government School. In any event it was his case that both Saif and Tariq were good friends because they were schoolmates. Tariq left for Hong Kong in 1994 after his 1^st year of study in college. It was Atiq's evidence that discussion then ensued between the two friends for his brother Saif to come to Hong Kong as a dependant of Hanif.

21. Atiq said he did not know anything about Tariq's father Hanif except that he was living in Hong Kong. He only knew Tariq's mother Madam Bibi was then living in Pakistan.

22. Atiq's mother passed away in November 1994. After the death of his mother, his father Mr. Abdul Rehman re-married against the wishes of the children and had since estranged from them. As such Atiq, being the eldest child in the family, had to take care of the other brothers and sisters. He and the Deceased were not on good terms with their father. Atiq said in his evidence that after the death of Saif, he managed to find some letters written by Tariq to Saif in 1994 together with enclosing envelopes. These envelopes were affixed with stamps then currently used in Hong Kong and cancelled with marks of Hong Kong Post Office. In one of these letters (pages 110 and 111 of the Witness Statement Bundle), Tariq wrote “…I was shocked on the death of your mother”. He further wrote a few lines to express his condolences to the death of the Deceased's mother. His brother Saif also wanted to come to Hong Kong in order to earn a better living.

23. Atiq produced originals of the following documents issued to Saif:

i) 7 school certificates from St. Peter's English High School and St. Peter's School covering the period from 1979 (or earlier because the one on page 50 of the Witness Statement Bundle relating to his attendance of the Nursery of St. Peter's English High School was undated) to 1986 (pages 3 to 14 of the Bundle of Agreed Documents (2^nd Application));
ii) 1 certificate issued by a religious school in 1990 (pages 21 and 22 of the Bundle of Agreed Documents (2^nd Application));
iii) 2 certificates from Government Comprehensive School covering session 1990 to 1992 (pages 16 and 17 of the Bundle of Agreed Documents (2^nd Application));
iv) 1 Examination result issued by the Board of Intermediate & Secondary Education, Gujranwala for Secondary School (1^st Annual) Examination 1992 dated 22^nd July 1992 (page 15 of the Bundle of Agreed Documents (2^nd Application));
v) 1 Certificate of Distinction issued by the District Boy Scouts Association for the examination held from 28^th June to 5^th July 1991 (page 20 of the Bundle of Agreed Documents (2^nd Application));
vi) 1 Sports identity card (without photograph) issued by the Government College, Gujranwala (page 27 of the Bundle of Agreed Documents (2^nd Application) and certified translation page 78A of the Witness Statement Bundle);
vii) 1 Character certificate issued by the Government College, Gujranwala for the two years from May 1992 to 1994 (page 18 of the Bundle of Agreed Documents (2^nd Application));
viii) copy of 1 Promotion examination for 1993 of the Government College, Gujranwala (page 81A of the Witness Statement Bundle);
ix) copy of 1 Conditional result of Examination Intermediate (Final) 1994 issued by the Board of Intermediate and Secondary Education Gujranwala (page 81B of the Witness Statement Bundle);
x) 1 Library card issued by the Government College, Gujranwala with photograph of the Deceased (Page 84 of the Witness Statement Bundle);
xi) 1 certificate issued by the Board of Intermediate and Secondary Education Gujranwala for the Intermediate (Annual) Examination 1994 issued on 25^th September 1994 (Page 87 of the Witness Statement Bundle);
xii) 1 Library card issued by the Jinnah Municipal Library dated 15^th January 1995 with photograph of the Deceased (page 89 of the Witness Statement Bundle);
xiii) 4 fee slips for fees to Government College, Gujranwala (pages 91 to 94 of the Witness Statement Bundle);
xiv) a number of photographs of Saif taken together with Atiq and other members of the Deceased's family including Atiq from childhood.

24. He could identify that the photograph of Saif affixed to each of the two library cards of his brother Saif aforesaid was exactly the same as the ones affixed to the passport and Pakistan Identity Card of Shahzad.

25. He also identified his brother Saif in the family photographs he produced. These photographs were taken of his brother from childhood up until the Deceased had grown up. Some pictures taken of Saif together with Saif's friends in Hong Kong were also produced.

26. In reply to the allegation of the 1^st Applicant that he had taken documents from Hanif's family in Pakistan some time in 2000, he denied and said he had never visited Hanif's home in Pakistan to collect documents.

27. It was Atiq's evidence that before Tariq left for Hong Kong in 1994, Tariq discussed with Saif about getting him to Hong Kong as a dependant of Hanif. After Tariq came to Hong Kong they continued to discuss about this matter and exchanged letters. Atiq said he was able to recover three letters written to Saif by Tariq in 1994 while the latter was in Hong Kong. In one of the letters dated 3^rd November 1994 (Page 107 of the Witness Statement Bundle), Tariq had this to say:

“ …I will tell you after two or three months later that you start preparation. At present you don't apply anything. For example, identity card, passport etc. Remember this thing that if you will not wish to come here, I would pull you and bring you here. … The Police is conducting heavy checks over here.”

28. Atiq produced the original of an envelope bearing post chop dated 15^th July 1994 with stamp affixed. It was addressed to Saif his home address in Pakistan. At the back of the envelope, the name of Hanif with an address in Kam Tin was typed thereon (page 114 of the Witness Statement Bundle). Atiq said that this was the envelope containing the first letter from Tariq to Saif dated 14^th July 1994 (pages 100 to 102 of the Witness Statement Bundle). It was suggested to Atiq in the cross-examination by 1^st Applicant's counsel that this envelope was bought from somewhere. Atiq disagreed.

29. During cross-examination, Atiq said his brother Saif talked to him about going abroad some time mid-September 1994. He talked to his mother who indicated that he could do whatever he decided for his brother because he was the eldest. However his mother said their financial situation was not good. His mother was ill then. Atiq said that he would give effect to the wish of Saif and would borrow money from friends and make arrangement.

30. Discussion took place between the Deceased and Madam Bibi on how much would be charged by her for obtaining false documents for the Deceased and for assisting him to enter Hong Kong.

31. Atiq said that it was later agreed that a sum of 3.5 Lak (1 Lak equals 100,000 Pakistan Rupees (“PKR”)) would be paid to Madam Bibi. At that time the exchange rate was around HK$1 to PKR6. He said that in or about 1995, an average Pakistan factory worker earned about PKR4,000 per month while a factory manager earned about PKR7,000. It was then agreed that an initial sum of PKR2.5 Lak was paid before the Deceased left for Hong Kong. The remaining PKR1.0 Lak would be paid when a Hong Kong Identity Card was issued to the Deceased. After getting the money Madam Bibi would then prepare documents necessary for Saif to gain entry to Hong Kong. Among these false documents were the Pakistan passport and identity card by the name of Shahzad, birth certificate of belated registration of Shahzad with Madam Bibi and Hanif as parents. In fact Madam Bibi gave this passport to the Deceased in his presence one to two days before the Deceased departed for Hong Kong. He said the aforesaid documents were in fact “genuine” in the sense they were documents issued by the relevant Pakistan authorities but the contents therein were false. There was also an affidavit made by Madam Bibi on 1^st August 1995 stating, inter alia, that she permitted her son Shahzad to live with his father Hanif in Hong Kong. This document, together with other documents, was retrieved by him from the belongings of the Deceased after his death at a flat belonging to the sister of Mohammad Nasir (“Nasir”), a friend of the Deceased, in Hong Kong in February 2000.

32. Atiq said that whenever Saif was required to sign any documents, Madam Bibi would ask Saif to come over to her to sign those documents. He said that he recovered a copy family registration form purportedly signed by Hanif from the Deceased's personal belongings after his death (page 119 of the Witness Statement Bundle). He said that this form, known as Form B, needed be prepared if one had to apply for a passport in Pakistan. It was to be prepared by the head of the family as he himself also filled up one as well for his own family. So Hanif had fabricated this for the purpose of applying a passport for Saif by the name of Shahzad.

33. Atiq said that in 1995, it was very easy to obtain a fake identity card in Pakistan. There were agents outside the government identity card offices who had connection with officers in those offices. All one needed to do was to pay those agents money and they could get a genuine identity card for you. It was illegal because bribe was involved. The situation in Pakistan now was different.

34. Atiq said that he borrowed the PKR2.5 Lak from his friends, Rizwan Ahmad and Mohammad Imran and his cousin, Hafiz Mohammad Zakiria. Saif handed the first PKR1.5 Lak to Madam Bibi in various sums upon Madam Bibi's request. About 1 to 2 days before Saif departed for Hong Kong, he and Saif went to Madam Bibi's home. He personally handed the sum of PKR 1 Lak, in cash, to Madam Bibi. The money was divided into two bundles of PKR50,000 each. After counting the money Madam Bibi asked Saif to come and collect some documents the next day. Saif departed Pakistan for Hong Kong from Lahore on 13^th August 1995 and arrived at Hong Kong via Bangkok the next day. He said that Saif had paid Hanif the balance when he got his Hong Kong identity card.

35. From the belongings of the Deceased found in Hong Kong, Atiq found originals of a Pakistan passport and a Pakistan Identity Card, issued by the name of Saif. As such he had in his possession two sets of Pakistan passports and identity cards issued to his brother respectively by the name of Saif and Shahzad, particulars of which are:

i) By the name of Shahzad
a) Passport – issued on 2^nd July 1995 (Pages 121 to 139 of witness statement bundle);
b) ID Card – dated 15^th June 1995, with address at Almujahid Fans Street, Miller Road, Shaheenabad, Gujranwala.
ii) By name of Saif
a) Passport – issued on 23^rd July 1998 (Pages 309 to 312 of Witness statement bundle);
b) ID Card – dated 29^th March 1995 with address at street of Haji Admed Din, Khokharki, Gujranwala;

36. It is noted that the 3 identity documents above issued in 1995 were all affixed with the same photograph whereas the passport issued in 1998 was affixed with a photograph with a mustache. According to Atiq, his brother Saif had a number of passport size photographs taken at a local studio in 1995. He was able to recover some of these photographs from the personal belongings of the Deceased when he was in Hong Kong (page 117 of the Witness Statement Bundle). It is also noted the recovered photographs were exactly the same (save and except the colour tone) as the ones used in the said identification documents issued by the Pakistan authorities in 1995 as well as the two library cards referred to in paragraph 23 above.

37. Atiq said that after the Deceased had come to Hong Kong, he and his family members maintained a lot of correspondence with the Deceased. A bundle of such correspondences were tendered as evidence (pages 151 to 205 of the Witness Statement Bundle). It was noted that among them there were two letters both dated 20^th September 1995, one was addressed to him and the other to his sister Amina. In the first letter the Deceased talked about his father and returned to Atiq his round trip ticket for refund. In the second, it appeared that the Deceased was teaching his sister Punti dialect he had just learnt in Hong Kong, such as younger sister being called sai mui, elder brother called tai lo and younger brother sai lo. Atiq also said that these two letters were contained in an envelope (page 163 of the Witness Statement Bundle and original also produced) with current Hong Kong stamps affixed and cancelled with postmarks dated 27^th September 1995. An address at 116 Tong Fong Tsuen, Ping Shan, Yuen Long was written and the sender was stated as Tariq. Atiq said that he could recognize the handwriting was that of the Deceased. Atiq was also able to show the original of another envelope with current Hong Kong stamp affixed and cancelled by Hong Kong postal mark dated 23 May 1996 (Witness Statement Bundle page 169). The sender's address written on this envelope was G/F Hang Tau Tsuen Ping Shan, Yuen Long. Atiq said that the Deceased had told him that the Deceased, Hanif and Tariq used to live together in Hong Kong and it was the Deceased who was to pay for the rent of the living place.

38. Atiq said between 1997 and 2000, he had visited Hong Kong six times as visitors for the periods as follows:

i) 6^th April - 1^st May 1997;
ii) 27^th October - 24^th November 1998;
iii) 17^th December 1999 - 19^th January 2000;
iv) 6^th February - 17^th February 2000;
v) 24^th April - 31^st May 2000; and
vi) 20^th September - 2^nd October 2000.

39. Twelve photographs taken during the two trips to Hong Kong were tendered as evidence (pages 209 to 214 of the Witness Statement Bundle). It was noted that Atiq and the Deceased were seen in some of the photographs with his friend Rashid, who came to Hong Kong with him in the first trip, and the Deceased could also be seen in the other photographs.

40. Atiq said the Deceased worked first of all on a temporary basis after arriving in Hong Kong in 1995. He later worked as mechanics or fitters for several employers since 1996 until his death. His employers included Gold Sing Motor Engineering Co. and Rotary International Company. He could locate a curriculum vita from the personal belongings of the Deceased. From the papers left behind by the Deceased, his earnings for March 1997 were around HK$8,000, while some time around March 1998 his earnings were HK$14,461.54. For the months from July to September 1999, his monthly earnings were about HK18, 200 or even more.

41. Atiq said that among the personal belongings of the Deceased he found out that some documents were issued to the Deceased by the name of Shahzad, e.g. Hong Kong Driving Licence and identity card, work permit issued by the Respondent and construction site green card. However, the identity card issued to him by the Hong Kong Trials & Motocross Club was issued in the name of “Shahzad Saif” (page 393 of the Witness Statement Bundle). It was noted that the photograph, which was exactly the same as the one used in the Pakistan identity cards of Saif and Shahzad, was affixed to this card. An envelope of the Vocational Training Council addressed to one Mr. Saif of King Mei House, Shan King Estate of Tuen Mun post-marked 15^th September 1998 was also found (page 379 of the Witness Statement Bundle).

42. Atiq said that the Deceased remitted money to him for support of his brothers and sisters and also his daughter and son, Armin and Nofil. Sometimes money was sent to him through friends returning to Pakistan from Hong Kong. Among the documents annexed to his witness statement, he produced photocopies of two bank drafts issued by HBZ Finance Limited at its Kowloon Branch, Hong Kong in the respective sum of PKR 25,627 (14^th June 1999) and PKR300,000 (12^th July 1999) (pages 333 and 336 of Witness Statement Bundle).

43. He said that he received a telephone call from a good friend of the Deceased, Nasir on or before 16^th December 1999 that his brother Saif met a serious accident. He immediately flew from Pakistan to Hong Kong on 17^th December 1999. He was received by Nasir at the airport and immediately rushed to the Queen Mary Hospital where the Deceased was admitted.

44. He went to the hospital to visit his brother everyday and stayed there the whole day except during the period from around 6:00am to 11:30 am when he returned home to take a rest. He recalled that it was the month of Ramadan. According to his recollection, while his brother was hospitalized, Hanif went to visit his brother roughly everyday or every other day for 2 to 3 hours each. Tariq went there two to three days a week. Madam Bibi only came to see his brother with her daughter when he passed away on 15^th January 2000. He said Tariq said to him that arrangement had been made for them to come to Hong Kong before the Deceased met the accident for renewal of identity cards.

45. Donations collected from fellow workers of the Deceased, in the sum of HK$4,000 to HK$4,500 and a gold coin together with get well cards were given to him by the secretary and the Deceased's boss around Christmas time. The money and gold coin were given to Hanif for safekeeping, as he always stayed at hospital overnight. Hanif refused to return the money and gold coin after the Deceased passed away.

46. On 10^th January 2000 the hospital tried to shift the Deceased from the ICU to the Burn Unit. He was there during the transfer process. However, the Deceased's conditions deteriorated suddenly. According to Atiq, the Deceased suddenly breathed heavily and with difficulty. Some sort of saliva came out from his nose, month and breathing tube. The Deceased was shifted back to the ICU. He never recovered. It was certified that his brain was dead. Life support machines were removed from the Deceased and he passed away on Saturday 15^th January 2000,

47. Atiq said he put the Deceased's body in the freezer with his own hands. On the following Monday, he settled the hospital bill and started to organize the necessary documents to bring back the death body to Pakistan. He was assisted by the Deceased's friends to collect the body of the Deceased from the mortuary and went direct to a Muslim graveyard. They give bath to the dead body. A funeral service was held at 9:00 pm that day. Many friends, colleagues including boss of the Deceased attended the funeral.

48. It was Atiq's evidence that he paid for the funeral expenses, including the expenses for taking the death body back to Pakistan. Neither Hanif nor Tariq had paid for the funeral expenses as alleged. Atiq was told by one of the co-workers of the Deceased during his 4^th visit to Hong Kong in February 2000 that the Deceased's employer had reimbursed Hanif for the funeral expenses.

49. It was common ground that Atiq accompanied the dead body of the Deceased to Pakistan on 19^th January 2000. It was also common ground that neither Hanif nor Madam Bibi or Tariq accompanied the dead body on that trip. In fact Nasir, the Deceased's friend also accompanied the body back to Pakistan with Atiq. The question is why Hanif and Madam Bibi, being the parents of the Deceased, did not return with the dead body to their homeland for burial. Atiq said the reason was obvious - he was the real brother of the Deceased and therefore naturally he flew with the dead body. Hanif's family said they have valid reasons for not doing so. There are also serious dispute of facts on what actually happened after the body arrived at Pakistan.

50. Upon arrival at Pakistan, Atiq said he collected the body of the Deceased at Lahore. An acknowledgement of receipt of the dead body was signed by him (page 244 of the Witness Statement Bundle). The dead body was originally contained in a coffin with a copper plate inscribed with the name of Shahzad. He removed it and the photocopy of the plate is at page 250 of the Witness Statement Bundle. A funeral service was held at 2:30 pm at the family home on 20^th January 2000. Many people, included two daughters of Madam Bibi and parents of Waqas, attended. The Deceased was then buried in the local cemetery in Gujranwala, close to the grave of his mother and uncle. A grave plate in the name of Saif was erected at the grave. Among other words in Punjabi, the following words “SAIF UR REHMAN DIED IN HONGKONG” were written in English. Photographs of the grave of the Deceased together with the said grave plate and graves of other members of the Rehman's family, including Saif's mother, were taken in September 2000 and produced as evidence at trial (pages 251, 252, 254 and 255 of the Witness Statement Bundle).

51. Atiq explained that after the burial of the Deceased in Pakistan, he came back to Hong Kong to collect the Deceased's belongings on 6th February 2000. He stayed in Nasir's home. He returned on 17^th February 2000. During his stay in Hong Kong, he went to the Mut Wah Street address in Kwun Tong where the Deceased stayed with Hanif and Tariq before the accident with a view to get back personal belongings of the Deceased, the gold coin and money he handed to Hanif in hospital. Hanif only agreed to hand back certain clothing, CDs and a Walkman but nothing else.

52. He later came to know that there was money in the Deceased's bank accounts in Hong Kong and that the Deceased would be paid certain compensation. After discussion with his family he decided to return to Hong Kong again and talk direct to Hanif and Tariq. He also said that he would also like to get back certain personal belongings of the Deceased still left in Hong Kong. So he and his brother Faiz left on 24^th April 2000 for Hong Kong and remained there until 31^st May 2000. They stayed in Nair's sister's house in Tuen Mun.

53. He said it was his brother who was supposed to obtain the compensation from his employer. However, according to documents his brother Saif had settled in Hong Kong by the name of Shahzad and as son of Hanif. And he understood Hanif would like to get the compensation because they did not want to get in trouble with the Immigration. Initially Hanif was reluctant to talk to him. He later managed to talk to Hanif and Tariq about the compensation at the working place of Nasir's father.

54. Atiq said that at last he reached an agreement with Hanif on how compensation was to be claimed. A written agreement was drawn up on 14^th May 2000 (“the Agreement”). He said the Agreement was in the handwriting of Tariq in Urdu and signed by Hanif. It was also signed with three other witnesses including Tariq. It is perhaps useful to set out below the certified English translation of the entire agreement:

“ I Mr. Haji Muhammand Hanif Son of Haji Muhammad Ismail solemnly declare that all the dues belongs to Saif to the company or in the form of insurance etc. which would be submitted to the court or the previous bank accounts of Saif or any other relevant items as much as or as many as, I and my son are obliged to return. If there is any trouble arises from my family side concerning insrance [sic] claim then I am responsible for that and Atiq-ur Rehman will be responsible himself for his family. A joint account will be opened for me, Muhammad Hanif and Atiq-ur Rehman in respect of the payment and the same account number will be given to the court so that each kind of payment be deposited into this account. Besides this any other way the lawyer suggests as appropriate can do. No cards of this account will be issed [sic] and no cheques books etc will be issued to both the parties without one another permision [sic]. And that I Haji Muhammad Hanif will sign ten blank cheques after receiving the cheques book. And that Atiq-ur-Rehaman [sic] will handle the case together with me.
I am writting [sic] this statement consciously and without any pressure so that it may be used in the time of need and be as a proof. I have written this statement in front of witnesses.
14/05/2000
(Muhammad Hanif)
XE 4381368
14-5-2000
Witness: Witness:
Haji Abdul Khaliq Fateh Jang Tariq Mehmood s/o Muhammad Hanif
204/48/078137 (P 4099927)
Abdul Khaliq 14-05-2000 Tariq 14/05/2000
Witness: Witness:
Hafiz Mr. Muhammad Farid Muhammad Arif
P 536238(9)
(Farid)

55. According to Atiq, the Agreement was written in the presence of:

i) he and his brother Faiz;
ii) Hanif and his son Tariq;
iii) Haji Abdul Khaliq Fateh Jang (“Nasir's Uncle”), who was Nasir's uncle;
iv) Hafiz Mr. Muhammad Farid (“Imam Farid”), who was an Imam of a Tuen Mun Mosque; and
v) Muhammad Arif (“Arif”), who was a friend of the Deceased.

56. Atiq said that all the names were put down by Nasir's Uncle and each of them, except Arif, subscribed their signatures to the agreement in the presence of each other. Arif did not sign because he had to leave earlier. However he was present during most of the discussion between them.

57. Atiq was cross-examined on why it required two people to write the Agreement, i.e. Tariq to write the body and Nasir's Uncle to write the names of witnesses. His explanation was that after Hanif had signed, they thought that it was necessary to have witnesses. Tariq was reluctant first of all to put them down and therefore Nasir's Uncle wrote the names of the witnesses down. All witnesses from the Hanif's family and Tariq denied the existence of the Agreement.

58. Atiq explained that he and his brother did not sign because they had appointed Nasir's Uncle to represent them. This was a man whom he, Hanif and Tariq trusted.

59. Atiq further explained that the description, “I and my son” in the 1^st sentence referred to Hanif and Tariq. In a nutshell, the Agreement was that the compensation claim would be lodged in the name of Hanif. He and Hanif would jointly handle the matter. Hanif and Tariq had to return to his family all sums from compensation and estates of the Deceased and would take no benefit. It was then contemplated that there might be problem if some members of the Hanif's family, e.g. Waqas, who according to his understanding was not the real son of Hanif and was the son of Madam Bibi's brother might, out of greed, claim for a share of compensation. So it was stated that Hanif and himself would be responsible for trouble arising from this sort of problems in their respective families. They would handle the matter as advised by lawyers. The joint account was for receiving compensation awarded by the court. The cheques were to enable him to get the money from that account.

60. It is common ground of the two Applicants that a joint account in the name of Atiq and Hanif was opened with the HSBC. Atiq said cash of HK$1,000 was withdrawn from his own HSBC account and deposited into this newly opened joint account on 26^th May 2000. The two ATM withdrawal slips and the deposit slip are shown at pages 266 to 268 of the Witness Statement Bundle.

61. Atiq said after the said agreement, he and Hanif had instructed Messrs. Boase Cohen & Collins (“BCC”) to claim compensation. Upon introduction of Imam Farid, Tariq and Atiq went to see Mr. Boase of BCC. A sum of $5,000 was paid to BCC on 19^th May 2000. Atiq's said it was his money and a bank transfer advice was produced at page 270 of the Witness Statement's Bundle with the receipt of the same date issued by BCC at 272. It could also be seen that BCC had sent the draft Application to Atiq direct for approval while he was still in Hong Kong (page 274 of the Witness Statement Bundle). BCC even corresponded with Atiq on the progress of the employees' compensation application, at least as at mid June 2000 as evidenced by an email dated 14^th June 2000 sent to him from BCC (pages 276 and 278 of the Witness Statement Bundle). As a matter of court's record, BCC was the then solicitors acting for Hanif when he was the Applicant in the 1^st Application as from 3^rd June 2000 until 23^rd March 2001.

62. Counsel for the 1^st Applicant had put to him that a sum of HK$8,600 had been transferred to Atiq before he transferred the money to BCC. Atiq denied. It is noted that the 1^st Applicant put in no documentary evidence to support the alleged transfer.

63. However, Atiq later received no reply from BCC. Upon enquiries with BCC, he was told that Tariq had instructed that no further development of the application should be communicated to him.

64. He immediately called Tariq and was told that the Agreement was finished. Atiq later realized that Tariq was in Pakistan during the period 21^st to 30^th May 2000 while he was still in Hong Kong. He suspected that he might have probably struck a deal with his father Mr. Abdul Rehman.

65. Atiq decided to pursue the matter in a proper way and therefore come to Hong Kong and instructed a law firm to issue the 2^nd Application. A letter dated 21^st September 2000 was issued by the 2^nd Applicant's then solicitors to Deacons, solicitors for the Respondent, putting them on notice of his intended claim and warning them not to release any money to the Hanif's family.

66. It was Atiq's case that after such letter, Tariq made a complaint to the Police. A statement was made on 2^nd October 2000. It was alleged by Tariq in that statement that after taking the dead body of the Deceased to Pakistan, Atiq returned to Hong Kong and stayed with them at an address at Fu Yan Street, Kwun Tong because Atiq was his good friend. Tariq later moved to another address at Mut Wah Street of Kwun Tong and keys of his new home were also given to Atiq. Atiq returned to Pakistan on 2^nd June 2000. About 2 weeks later when the social worker request documents about the Deceased, he found certain documents were missing. He suspected Atiq of stealing them away. He called Atiq from Hong Kong and Atiq admitted those documents were with him. Later Atiq required them to pay HK$100,000 in exchange for the documents and he and his father refused. Atiq denied these allegations.

67. Atiq said at some stage he knew that the Queen Mary Hospital had retained tissue sample of the Deceased. Pursuant to the directions of H.H. Judge Carlson given in 2001, in or about 2004 he had provided blood sample and his brother and two sisters, Faiz, Farha and Amina provided hair samples and tissue samples from mouth swabs for the purpose of a DNA test. At that time they did not know that the tissue samples kept by the hospital had degraded.

Director Malik

68. Mr. Safdar Ali Malik (“Director Malik”) was the second witness of the 2^nd Applicant. He had been the Deputy Director of the Special Investigation Unit (“SIU”) of the Federal Investigation Agency (“FIA”), Islamabad, Islamic Republic of Pakistan in 2001. Director Malik was answerable direct to the Director General of FIA. He retired on 1^st July 2005. However, he testified that he had got permission of the Director General of the FIA, Pakistan to travel to Hong Kong to give evidence in this Court and bring along with him the complete case file.

69. Director Malik said he had 40 years of service with the FIA before his retirement. He had given evidence in a number of criminal cases overseas including a high profile drug case in the United States. He also assisted in a number of other cases to foreign countries, such as Norway and Saudi Arabia. He was involved in the investigation of all types of crime, normally selective important cases, in Pakistan at a Federal level.

70. He made a written statement dated 5^th December 2005 and annexed to it, inter alia, the report made by his subordinate Sub Inspector Nazar Mohammad (“Sub Inspector”). Since he had got the original case file, certain original statements said to have given by Hanif and Madam Bibi in Pakistan to him and the Sub Inspector were given to and examined by the two Applicants. Copies of the said statements together with the respective certified translations were incorporated in the Witness Statement Bundle.

71. His involvement with this case began when on 3^rd May 2001, the Interpol Hong Kong asked for assistance from Interpol Islamabad (pages 583 to 584 of the Witness Statement Bundle) who passed the request to the SIU of the Pakistan FIA for investigation. He and the Sub Inspector were responsible for the investigation. The Sub Inspector had compiled a report dated 24^th September 2001 (pages 597 to 680 of the Witness Statement Bundle). Director Malik also compiled his own (pages 681 to 686) based on his own investigation and that of the Sub Inspector. His report was sent to the Hong Kong Interpol.

72. Many persons, including Hanif, Mr. Abdul Rehman, Madam Bibi, Atiq, Nasir's Uncle, people who were said to have attended the funeral in Pakistan and/or friends of the Deceased and even a local councillor in the Hanif's mohalla (i.e. neighbourhood) Mr. Raja Muhammad Munir were interviewed. Director Malik personally interviewed in the presence of the Sub Inspector four of them, namely, Atiq, Mr. Abdul Rehman, Hanif and Nasir's Uncle. The investigation launched by him also examined, inter alia, documentation surrounding the identity, history and life of Saif and Shahzad in Pakistan.

73. He said Hanif first appeared before him on 20^th July 2001. After examining Hanif personally in the presence of the Sub Inspector, the Sub Inspector took a written statement from Hanif. He provided the said original statement to counsel for both parties for examination and the copy statement together with the certified English translation were at pages 693 to 698 of the Witness Statement Bundle.

74. Hanif said to him that after the death of the Deceased, he did not accompany the dead body to Hong Kong but his wife Madam Bibi and daughter Asyia did on 19^th January 2000. The body was buried at the Lowianwala Graveyard, the local graveyard in the village of Shaheenabad, the area where Hanif's family resided.

75. On the same date, Madam Bibi also provided a statement saying, inter alia, that she and her daughter Asyia had accompanied the dead body of Shahzad to Lahore from Hong Kong. Her statement was made in the presence of Hanif and a Councillor Mr. Raja Mohammed Munir (pages 703 to 708 of the Witness Statement Bundle).

76. Later, on 15^th August 2001, Hanif was interviewed by the Sub Inspector. On that occasion a number of documents, including the original passport of Madam Bibi, were produced for inspection by the Sub Inspector. Mr. Abdul Rehman, Atiq's father was also present. From an inspection of her passport the Sub Inspector found out that Madam Bibi was still in Hong Kong on 19 January 2000. She only departed Hong Kong for Pakistan at around 20^th February 2000. Director Malik said according to the Sub Inspector's statement, Hanif and Mr. Abdul Rehman persistently asked for changing their statements given previously. The Sub Inspector refused but invited them to put in supplemental statements which they gave none. The Sub Inspector's statement in this respect was annexed to his statement (pages 590 to 592 of the Witness Statement Bundle). Hanif's statement was at pages 699 and 700 of the Witness Statement Bundle. Hanif also denied expressly the Agreement concerning jointly claiming compensation in Hong Kong with Atiq had his signature thereon.

77. On 5^th September 2001 Hanif came to the Sub Inspector for the 3^rd time giving a short statement promising to provide school and college certificates concerning Shahzad. The statement of Hanif was at pages 701 and 702 of the Witness Statement Bundle.

78. He came back to see the Sub Inspector on 10^th September 2001 for the 4^th time. He produced a school leaving certificate in the name of Shahzad in Urdu showing that Shahzad had attended “Government High School Mandiala Tega, Gujranwala” from 15^th April 1990 to 9^th May 1990 (for about 24 days) in class 8. (pages 715 to 717 of the Witness Statement Bundle). A belated death certificate in Pakistan (record entered some time February 2001) was also produced. No college certificates were produced as promised.

79. According to the Sub Inspector's report annexed to Director Malik's statement (pages 597 to 680 of the Witness Statement Bundle), he had visited the grave of Shahzad at Lohianwala Graveyard in the presence of Councillor Raja Muhammad Munir. He noticed that the grave was without any nameplate erected (page 671 of the Witness Statement Bundle).

80. According to the Sub Inspector's report (pages 671 and 672 of the Witness Statement Bundle), Madam Bibi had provided several names of persons who alleged to have attended the funeral of Shahzad. He had tried to approach them. Only two were willing to provide written statements. One was called Muhammed Siddique who lived in the same mohallah of Madam Bibi. He said in year 2000 no dead body arrived at the mohallah from overseas and he did not attend such funeral. He knew Hanif had only one son called Tariq residing in Hong Kong. The other, one Abdul Wahid said that he was not even present in the Gujranwala at the said time although he did say that after three days of the burial he went to Hanif's home for condolence.

81. According to the Sub Inspector's report he did manage to interview another resident of the same mohallah Mr. Aamir Iqbal who did not want to provide a written statement. This gentleman said he knew about the mohallah well but there was no dead body of Shahzad arriving at the mohallah from abroad during the month of January 2000. He said Hanif had one son called Tariq and Shahzad was not his son (page 672 of the Witness Statement Bundle).

82. Furthermore, the councillor of the mohallah Mr. Raja Muhammad Munir said to the Sub Inspector that he knew all persons in the mohallah. He said neither dead body by the name of Shahzad nor any dead body at all arrived from abroad at the mohallah where Hanif resided in January 2000 (page 673 of the Witness Statement Bundle).

83. On the other hand, the Sub Inspector had interviewed about 20 persons, including Saif's relatives, former schoolmate and persons not related to Saif. Many of them confirmed that they had assisted to bring the dead body back to Gujranwala. Many had confirmed that they attended the funeral of a person called Saif, son of Mr. Abdul Rehman, on 20^th January 2000. They confirmed that Mr. Abdul Rehman had four sons and one of them was called Saif. Many confirmed that they had seen the face of the dead body in the coffin and recognized him to be Saif, though it was burnt. Many had attended the funeral at which the Jinaza prayer was offered in the graveyard of Khokarki of Gujranwala. Even the gravedigger was interviewed and confirmed that the coffin was buried in his presence (pages 647 to 659 of the Witness Statement Bundle).

84. The Sub Inspector's report stated that Both Atiq and Hanif had been asked to provide documentary evidence concerning Saif and Shahzad's life from childhood to death. Atiq had supplied about 40 documents including birth certificate, citizen registration documents, school and college certificates, evidence of membership of boy scouts, library cards, Pakistan Passport, Identity Card and family photos. It is Director Malik's evidence that he could not find any irregularity of those documents produced.

85. According to Director Malik, Hanif had supplied limited evidence of Shahzad concerning his life prior to his departure from Pakistan. The only documents provided were the birth certificate and the aforesaid school attendance certificate despite the fact that according to Madam Bibi, Shahzad had attended college. No photographs purporting to be Shahzad when he was a child had ever been produced.

86. Director Malik and the Sub Inspector had done verification of documents relating to birth certificates, identity cards and passport. He said Shahzad's birth not registered until 1995 was unusual. A child in Pakistan could not enter a school without birth certificate or birth registration Form B under the Pakistan National Registration Act 1973. Only an illiterate family would not send a child to school and therefore needed not a birth certificate for his child. Director Malik said that this Form B should be required for school admission purpose. This was the identity of the Pakistan citizen when the child was born. This was also the evidence of birth because the date of the birth was recorded there. When the child became an adult Form A was required to be filed. Director Malik said that according to his own enquiry, the identity card number of the attesting officer on the registration records of Shahzad produced by Hanif (Form A) was investigated and no such person could be traced. According to the report of the Sub Inspector (page 674 of the Witness Statement Bundle), Form B for Saif was deposited by Mr. Abdul Rehman on 17^th August 1974 whereas Form B for Shahzad was only deposited on 4^th June 1995 by Madam Bibi. For these reasons, he concluded that the belated birth certificate produced by Hanif was not a credible document.

87. Director Malik personally interviewed Mr. Abdul Rehman on 20^th July 2001. He said Mr. Rehman denied before him having a son called Saif. However Mr. Abdul Rehman was then shown a copy of Form B which he had completed for his family (pages 593 to 595 of the Witness Statement Bundle) and in which he signed as head of family. He stated, therein inter alia, that Saif was his son. Mr. Rehman admitted the signature being his and the correctness of the particulars of Form B. He also confirmed in that statement that Madam Bibi and her daughter accompanied the dead body of Shahzad back to Pakistan on 20^th January 2000 and he had attended the burial ceremony. His statement is at pages 709 to 714 of the Witness Statement Bundle.

88. Director Malik also interviewed Nasir's Uncle. He confirmed to Director Malik that he had attended the funeral of the Deceased when the dead body was brought back to Lahore by Atiq. He also admitted to Director Malik that an agreement was reached between Atiq and Hanif on 14^th May 2000 in Hong Kong. He confirmed that he had signed the agreement as a witness along with other witnesses including Tariq. The Agreement (pages 261 to 264 of the Witness Statement Bundle) which Nasir's Uncle said he had signed was shown to Nasir's Uncle during the interview in Pakistan. The one annexed to Atiq statement was shown again to Director Malik at this trial for identification. He confirmed that that was the one identified by Nasir's Uncle. Director Malik, however, said Hanif denied before him having signed the Agreement.

89. On cross-examination, Director Malik was asked the possibility of a family in Pakistan having failed to fill up a Form B but could attend school. He said that it was quite impossible. Inspector might be sent to investigate if there was no registration, and some genuine reasons were expected. Illiteracy of the parents might be accepted as a good reason. Director Malik admitted he had not verified the school certificate produced by Hanif. It was suggested to him by counsel for the 1^st Applicant that there should be a previous school-leaving certificate unless the 24-day certificate was proved to be unauthentic. His reply was that a man who claimed to be a college graduate only produced education record of 24 days was not credible. Furthermore, Hanif had made a promise to produce a college certificate but he failed. He had only seen for the first time the school certificate of Quaid-E-Azam Cadet High School (page 267 of the Agreed Documents Bundle (2^nd Application)) provided by Hanif to the Hong Kong Immigration Department at this trial.

90. He also said in the cross-examination that if a Muslim died in Mecca, he might prefer to be buried in the holy city. If died elsewhere, one's relatives would bring the body back to Pakistan. He said Shahzad's case was the only incident in his life that both father and mother were not going back with the dead body to Pakistan.

Rashid's evidence

91. Rashid was the third witness of the 2^nd Applicant. He testified that he was a colleague of Atiq when they both studied in college. Atiq was his friend for over 14 years. He knew that Atiq has six brothers and sisters and Saif was one of them. He said he came to know Saif well in or about 1990. He met him when visiting Atiq at his home or on special occasions. Atiq's father is called Abdul Rehman and his mother Madam Balquees who had passed away some years ago. He could identify Atiq's parents from pictures shown to him. He and Atiq came to Hong Kong in 1997 to visit Saif. He met Saif in Hong Kong and stayed at Saif's flat together with Atiq. They went out for sightseeing together and he produced photographs taken with Tariq, Saif and himself during his trip to Hong Kong. The person identified by him in the photographs was the one referred to by Atiq as Saif, the Deceased. He had attended Saif funeral in Pakistan on 20^th January 2000.

Mahbood's evidence

92. Mahbood was the 4^th witness called by the 2^nd Applicant. He said he was a colleague of the Deceased. He testified that he met the Deceased for the first time when they attended the Rotary International Company (“Rotary”) for interview in 1997. They were both offered a job by Rotary. They worked together at the same site and became good friends. In his evidence, he said “…all the boys know him by the name of Saif”. However the name card of the Deceased was by the name of Shahzad. He said he was not surprised because many people were addressed by a different name from their identification documents. After work they spent time together socially. Later the Deceased went to live in a converted container in Tseung Kwan O while he and another colleague Tanvir lived together in the adjacent container for the period from June 1998 to January 1999.

93. He recalled he had once been requested by the Deceased to, and he did, drive Atiq and his friend to Nasir's flat in Tuen Mun in his Mazda van EL 2587 when they came to Hong Kong. The Deceased told him Atiq was his brother.

94. In Mahbood's evidence he also said that before Christmas time in 1999, he was told that the Deceased was injured and was admitted to hospital after he had returned from Pakistan. He rushed to the hospital. He saw Atiq there. He visited the Deceased everyday and on each occasion he saw Atiq there. Tariq was also there in the evening for about an hour. Hanif also used to come.

95. Mahbood testified that after the death of the Deceased he and Atiq took the dead body of the Deceased from hospital to the Muslim cemetery in Happy Valley. Besides, Tariq and Nasir were also there to help. He said that he was at the cemetery until 2:00 am. He came back to the cemetery the next morning. The dead body was given a bath and the funeral prayer was offered at the cemetery.

96. He also said some time after he gave a written statement Tariq had approached him asking him to retract his witness statement. He refused, saying he would do what was right, as Saif was his friend.

Tanvir's Evidence

97. Tanvir was the 5^th witness of the 2^nd Applicant. He had given a written statement dated 6^th August 2002. He was a good friend of Mahbood through whom he came to know the Deceased. He was then working for Cheung Yat Company in Tseung Kwan O. Mahbood introduced the Deceased to him as Saif. When he introduced Saif to work for his boss, he saw his Hong Kong identity card and came to know him with another name Shahzad. The Deceased was employed by his boss as mechanic and his boss called him “Ah Wai” because he found the Deceased's name difficult to pronounce. He, however, addressed the Deceased Saif. Everybody called him Saif at the work place.

98. He also said that the Deceased had once lived in a container next to the one occupied by Mahbood and him. Three of them often cooked and eat together. Some time in 1998, the Deceased introduced to him Atiq and said he was his elder brother. Atiq stayed with the Deceased together in the same container for about one week. Through the Deceased he met Tariq and Hanif who was introduced as Tariq's father and not the Deceased's father. He understood Tariq and the Deceased were good friends.

99. When the Deceased passed away, he had accompanied Atiq to the Government Office in the Admiralty to cancel the HKID Card of the Deceased and obtained a death certificate. When cross-examined on the date he obtained this death certificate, he admitted he could not recall. He did attend the funeral at Happy Valley.

1^st Applicant's story

100. The 1^st Applicant's evidence is that she is the eldest of the 9 children in the Hanif's family, the names of which have been set out in paragraph 2 above. The Deceased is second eldest among the children and was the eldest son. She is about one year older than the Deceased. She was born in 1974 and the Deceased by the name of Shahzad was born on 6^th October 1975. It is noted that Shahzad is exactly 2 years younger than Saif. The family home in Pakistan is Almujahid Fan Wali Gali Shaheenabad, Gujranwala.

101. She identified the photograph on the Pakistan ID Card by the name of Shahzad as his deceased brother (page 98 of the Witness Statement Bundle).

102. The 1^st Applicant said her father, Hanif, went to work in Hong Kong in 1969 but came home from time to time. According to the written statement of the 1^st Applicant dated 2^nd April 2002, the 1^st Applicant said that the family went to live with his father Hanif in Hong Kong in 1978 and therefore her sister Musrat was born in Hong Kong in 1979. However, the family, except his father returned to the Pakistan because of the downturn in the Hong Kong economy. The family was then supported by money sent from Hanif, and later his brothers Tariq and the Deceased, after they both came to settle in Hong Kong. Her mother, Madam Bibi, took care of them in Pakistan.

103. Tahira testified that her brother Shahzad came to Hong Kong about one year after Tariq. She said that it was because Shahzad was then studying in Pakistan. After Shahzad came to Hong Kong, he together with Tariq and Hanif lived at Ground Floor, Hang Tau Tsuen, Ping Shan Yuen Long.

104. She said her father and Atiq's father Mr. Abdul Rehman were friends. She knew that Mr. Abdul Rehman had a son by the name of Saif. So Atiq and Saif were brothers but Saif was not the Deceased. Her father Hanif, Atiq and Shahzad were good friends. His father Hanif trusted Atiq because he considered Atiq educated, intelligent and could speak good English. As such, although sometimes money sent by her father was made by bank remittance for which his father or brother needed to take a day-off, on occasions his father entrusted Atiq to bring money back to her family if Atiq happened to be in Hong Kong.

105. Tahira testified that when the Deceased met the accident, she and her Mother was in Pakistan. When first told of the accident by her father over the phone, she was told that the Deceased suffered a burn of 70% of the body. All the family would like to come to Hong Kong but her father decided that only her mother should come to Hong Kong together with her younger sister Asiya. When they decided to come to Hong Kong, she understood, as told by her father, the brain of the Deceased had already been dead. So it was thought by her father that if the Deceased could hear his mum's voice, he would get better. Since her mum's health was bad then, it was decided that one daughter should accompany her.

106. Madam Bibi and Asiya arrived in Hong Kong in January 2000. According to the passport record of Madam Bibi, she arrived at Hong Kong on 14^th January 2000 and departed on 13^th February 2000. On the date the Deceased passed away, Tariq informed her over the phone about the sad news.

Waheed's Evidence

107. Waheed was the 2^nd witness of the 1^st Applicant. He testified that he worked at the airport project in 1997 and came to know that Hanif, Tariq and the Deceased belonged to the same family. He sometimes had lunch with them at the site and had seen the three of them sharing one lunch box. He however admitted that he forgot whether it was Tariq or other persons who told him about their relationship. He also said it was common for brothers, father and son and uncle and cousin to work at the same sites at that time and he did not find it necessary to ask further about their relationship. He had not heard of the Deceased having a name other than Shahzad.

108. He had attended the Jinaza that took place in Happy Valley in the afternoon. He said that about 160 to 200 people had attended the funeral.

Hanif's Evidence

109. Hanif was the 3^rd witness of the 1^st Applicant. He had in fact filed an affidavit dated 2^nd December 2005, 3 days before the trial commenced. He said that he and his wife Madam Bibi had eight children. The 1^st Applicant Tahira was the eldest child and Shahzad was his eldest son who was about one year younger than Tahira. Tariq was his third child of the family. He had been a resident of Hong Kong since 1969 and acquired permanent residency in 1995. Shahzad came to Hong Kong to join him in 1995. He identified the photograph affixed to Shahzad's Pakistan Identity Card at page 98 of the Witness Statement Bundle his son.

110. Hanif said that Mr. Abdul Rehman was his friend who had a son called Atiq. He only knew him very little. Atiq had been to Hong Kong and stayed in his house in Ping Shan where he, Tariq and the Deceased used to live.

111. He, Tariq and the Deceased worked for the Respondent when the Deceased met an accident in December 1999. The Deceased was then rushed to hospital. Thereafter he stayed with the Deceased everyday and for the whole day in the hospital. Tariq could not afford to stay there all the time because he was a foreman and could not take leave easily. But Tariq went there everyday for 2 to 3 hours. Atiq happened to Hong Kong for business one week after the accident.

112. After the accident he informed his family in Pakistan. However he pacified them that the Deceased's condition was improving. Later, the doctors said that the Deceased's condition was not improving and advised him that if he wanted any of the family to see the Deceased he would better ask them to come. He therefore notified his wife who then came with his daughter.

113. After arrival of Madam Bibi a meeting was held with doctors. A decision was made to remove the life support machines from the Deceased, who shortly afterwards, passed away. He confirmed that he, Madam Bibi, Asiya, Tariq and two friends Atiq and Nasir attended the meeting. The two friends also took part in making the decision.

114. Hanif said he was the one who arranged for the funeral arrangement in Hong Kong. The body was taken to a Mosque in Happy Valley where the dead body was given a bath by him. The dead body was then wrapped in shroud. Then the Imam started the Jinaza (funeral prayers). He said the Jinaza was fixed for 1:30 pm but it started at around 2:30 pm to 3:00pm.

115. Hanif said he paid in cash on 18^th and 19^th January 2000 all the expenses in connection with the funeral in Hong Kong and for sending the body back to Pakistan. He identified three documents at pages 41 to 43 of Bundle of Agreed Documents (1^st Application), as to HK$2,000 for the charge for the Islamic funeral ceremony, HK$5,500 as cargo charges for sending the body to Pakistan and HK$15,000 for general funeral services, totaling HK$22,500.

116. In the examination in chief, counsel for the 1^st Applicant asked Hanif whether it was the usual practice for parents to accompany the dead body of the Deceased back to Pakistan. Hanif replied that it was not necessary and was entirely up to them. He had family members in Pakistan to look after the funeral there. In fact in his said affidavit, Hanif said that he did not take the dead body of his son to Pakistan for burial on three grounds: (a) his wife Madam Bibi was not in good health and he had to take care of her; (b) they were too upset by the tragic death of his son; and (c) he could not afford to buy an air-ticket home. He later said ground (c) was not a problem to him. He reiterated that he was then suffering from diabetes and was unfit to travel. His wife was suffering from high blood pressure.

117. He said that when he and Madam Bibi returned to Pakistan about one month after the death of the Deceased, they visited the Deceased's grave appeared at page 506 of the Witness Statement Bundle. The grave of the Deceased Shahzad was with a nameplate.

118. He also denied having signed the Agreement with Atiq to jointly claim the compensation, although he said the signature on the agreement looked like his.

119. When he was asked about what documents were lost and how they were lost, Hanif said that he was not exactly sure what documents had been lost. He could name a number of identification documents of the Deceased being lost. They were lost from their Kwun Tong premises and they suspected Atiq had stolen the documents away.

120. Concerning the DNA test, Hanif's reply in cross-examination was mainly that he might be absent from Hong Kong after the order for DNA test was made. As regards why he objected the DNA test on the grounds of, inter alia, gross intrusion of privacy: see BCC's letter dated 24th January 2002 (page 1 of the Correspondence Bundle), Hanif's reply was that he did not know about this and perhaps he was then not in Hong Kong.

Tariq's Evidence

121. Tariq had filed in total two affidavits and three witness statements for the 1^st application. Some were filed and served after the commencement of trial and even after the 2^nd Applicant had finished giving evidence. As the 2^nd Applicant did not object to the late filing, I allowed the 1^st Applicant to file and serve the evidence late, subject to weight to be attached by the Court. They are as follows:

i) statement dated 2^nd May 2002;
ii) affidavit dated 8^th December 2005;
iii) further statement dated 12^th December 2005;
iv) 2^nd affidavit dated 27^th January 2006; and
v) 3^rd witness statement dated 27^th January 2006.

122. He had adopted his above statements and affidavits as his evidence. In addition, he had elaborated his evidence in the examination in chief.

123. Tariq said that Hanif and Madam Bibi were his parents and the Deceased was his elder brother. He produced birth certificates of his brothers and sisters to show that most of his brothers and sisters had belated registration of birth certificates but yet they could enter school in Pakistan. He said that birth certificates were not required when one enter schools in Pakistan. It was when one applied for a Pakistan passport that birth certificate was required to be produced. As such those who had not registered previously might apply for late registration of birth. He also produced a copy of Atiq's birth certificate that showed a belated entry in 2000 (page 786 of the Witness Statement Bundle).

124. He produced several photographs of the Deceased taken with him and/or Hanif (pages 137 to 139 of the Bundle of Non-Agreed Documents and pages 742 of the Witness Statement Bundle). He identified the photograph attached to the Pakistan Identity Card and Passport of Shahzad to be his deceased brother Shahzad.

125. Tariq said he, the Deceased and Hanif all worked for the Respondent at the time of the accident. He was at the site when the accident occurred. After that, he and Hanif were not required to work. He was only required to assist the Labour Department in the investigation of the accident. Yet both of them received full pay from the company. He said he and Hanif stayed in turn in hospital with the Deceased all the time.

126. Around that time, Atiq happened to have a trip to Hong Kong and before he left for Hong Kong, he visited his mother Madam Bibi to see whether she had any message for them in Hong Kong. Atiq therefore learned of the tragedy and when he arrived in Hong Kong he called him and visited the Deceased in the hospital. Atiq was also invited to stay with him, Hanif and his brother Waqas in Hong Kong.

127. Similar to what Hanif and the 1^st Applicant had said, Tariq said he played down the bad news to his mother in Pakistan until the doctors said in early January 2000 that the Deceased suffered brain damage and might not regain consciousness again. The doctors told them if other family members would like to see the Deceased for the last time they better do so as soon as possible. They therefore immediately told his family in Pakistan and his mother together with his sister Asiya arrived in Hong Kong on 14^th January 2000. At a meeting with doctors the next day at which his parents were present, it was decided that the life support system be removed and the Deceased passed away.

128. It was not in dispute that a Jinaza prayer was held in Happy Valley on 18^th January 2000. But it was not Atiq who helped cancel the identity card of the Deceased. According to Tariq, it was Hanif and Hanif's friend who did it. He also gave a detailed description of how the body was prepared, including the make-up and giving of bath before the funeral.

129. He explained that initially he and his brother Waqas were thinking of going back to Pakistan together with the dead body. He had even given his name to the travel agent for air ticket. However, at the Jinaza, his boss and friends said that he had then became the eldest son of the family and had to take care of his family. They also said it would be difficult to find a job again and it would be better for him to stay here. He took the advice of his boss and friends and stay behind.

130. Since Atiq and Nasir had said they would take the body back, he paid for the air tickets for them (page 760 of the Witness Statement Bundle). They made such offer because they had to return anyway and considered it not a difficult job. Eventually Atiq was given the Deceased's Pakistan passport and identity cards. They were both entrusted with this job.

131. He expressly refuted the allegation of Atiq that Saif entered Hong Kong by the name of Shahzad on documents forged by the Hanif's family. He said in Pakistan, people did not have a surname. His family was a good example. If Saif would like to come to Hong Kong, it was unnecessary for him to change his name. He could still use his own name to enter Hong Kong. It was simply unnecessary for someone to change his name.

132. He categorically denied the existence of the Agreement as alleged by Atiq or at all.

133. Tariq said before the Deceased sustained the fatal accident, Atiq had been to Hong Kong twice on business, once in 1997 and the other 1998. On both occasions, Atiq and his friend stayed with him and the Deceased.

134. After accompanying the dead body back to Pakistan, Tariq said Atiq returned to Hong Kong in February 2000, claiming that he had some outstanding business to attend to. Atiq stayed with him for one day while Madam Bibi and Asiya were still in Hong Kong. Tariq said that Atiq had brought and given to him some documents of the Deceased from his family in Pakistan, saying that the Hanif's family might need them. He also offered to help if and when he was required. The documents given back included Shahzad's identity card, passport as well as some of the Deceased family photographs.

135. In May 2000, Atiq came back to Hong Kong again. Atiq said he could introduce them lawyers to handle his claim for compensation as he knew some lawyers in Hong Kong and had handled “some cases” in Pakistan previously. He was given the impression that Atiq knew how to deal with the claim. At that time their application for legal aid has just been refused. Atiq introduced them to solicitors firm BCC whom he said a low fee would be charged. Tariq said he was then working and Atiq's assistance's would release him of the burden of reading difficult English documents and instructing lawyers. Atiq, Tariq and Hanif then went to BCC and had a meeting with Mr. Boase of BCC.

136. Tariq said Atiq stayed with his family for some time but suddenly said Mr. Boase needed a fee for the case. Atiq asked for HK$8,600, as to HK$5,000 for Mr. Boase, HK$1,600 for some photocopies and HK$2,000 for matters he might require to do in connection with this case. He then transferred this sum to Atiq's account with the HSBC. Prior to the transfer he had consulted his father Hanif who asked him to do as what he was asked to do.

137. Some time after Atiq had returned to Pakistan and in June 2000, the Social Welfare Department asked for the Deceased' documents. He then found out many documents missing. These included some family photographs, the Deceased's bankcards, cancelled passport and identity cards. He was then thinking those documents were with BCC. He called Atiq who said these documents were with him. However when he later approached Atiq for the documents again Atiq requested a sum of HK$100,000 for return of them. He felt very angry and refused.

138. When Hanif was in Pakistan around that time, he was approached by some people with a police warrant concerning allegations that they use false documents to take the Deceased to Hong Kong (pages 395 of the Witness Statement Bundle). His father told him that some people, not in uniform, came to his family in Pakistan asking for PKR 1 million failing which Hanif would be arrested.

139. He also said that in November 2005 when he was in Pakistan, Atiq and Atiq's brother Faiz came to his home knocking heavily on the door. They threatened to kill him if he did not withdraw his claim. He said because of the same warrant against his father, he had to appear before a judge in Pakistan. After explaining to the court there, he was found not guilty and was acquitted.

Credibility of Witnesses and Assessment of Evidence

140. As I have said above, the outcome of this case hinges on credibility of witnesses and reliability of documents of the Deceased produced by the Applicants. After hearing the evidence, I would like to make my observations on the credibility of the witnesses since their evidence has taken up most of the trial time and counsel have also spent substantial time in cross-examining witnesses to test the truth of their stories.

Hanif

141. I must say that I do not accept the evidence of Hanif. For reasons which I shall discuss in the following paragraphs, I find him a totally unreliable witness who always shifted his evidence when being cross-examined and resorted to prevarication and was evasive. The following are some of the many examples.

142. Hanif swore an affidavit on 2^nd December 2005, only 3 days before the trial commenced. That was his only substantive statement disclosed prior to trial. In the present dispute, common sense tells that he is a key witness for the simple reason that he claimed to be the father of the Deceased. He is therefore expected to come foreword to confirm the identity of his beloved son. At the commencement of the trial on 5^th December 2005, leave was sought to admit his affidavit late and I accordingly grant an order that, inter alia, this affidavit do stand as his witness statement. This affidavit was accordingly filed with the Court on the same date.

143. On 16^th December 2005 it was his turn to give evidence. When he was asked by Miss Gwilt, counsel for the 1^st Applicant, he told the Court on affirmation that although the affidavit bore his signature, he did not know what was written as it was in English and no one had ever read the same to him in the Punjabi dialect. He was only asked to sign. He therefore could not adopt the contents of the affidavit. Counsel for the 1^st Applicant appeared to have no alternative but to examine him viva voce in the examination-in-chief without reference to his affidavit.

144. The hearing was adjourned part heard to 23^rd December 2005. He was cross-examined on his affidavit. However, this time he categorically denied having signed any affidavit at all and said that the signature in this affidavit looked like his but in fact was not his. This was a serious allegation as it suggested forgery. After he had been confronted with answers he had previously given to this Court and upon counsel for the 2^nd Applicant indicating that the interpreter who affirmed having interpreted the contents to him would be summoned to explain, he changed his evidence by admitting the signature being his. But then he said some main points were not explained to him.

145. I therefore directed the English-Punjabi interpreter to explain to him the contents of his affidavit in Punjabi in open Court paragraph by paragraph. Save for the correction to the name of the hospital to which the Deceased was admitted, he confirmed everything he said in the affidavit to be true and correct.

146. In the said affidavit, Hanif said that he did not take the dead body of his son to Pakistan for burial on three grounds: (a) his wife Madam Bibi not in good health and he had to take care of her; (b) they were too upset by the tragic death of his son; and (c) he could not afford to buy an air-ticket home. However after he had been shown his bank passbook of the HSBC which recorded a sum of not less than HK$40,000 around that time, he then repeatedly said that money was not a special reason. He alleged that the person drafting the affidavit might have got it wrong.

147. However, when his attention was drawn to the fact that in the morning he had been expressly asked whether he had any correction to make to his affidavit and he had expressly confirmed the contents except the name of the hospital, he shifted by saying that he did not realize the reasons related to tickets. He said that the other reason for not going with the death body to Pakistan was his poor health – he was suffering from diabetes and was unfit to travel at that time.

148. Hanif was heavily cross-examined on the school records of the Deceased. Hanif answered counsel for the 2^nd Applicant that Shahzad attended two to three schools before coming to Hong Kong. When he was asked to name them he identified Yasar School, Zamia (or Jamie/Jamie) High School and the Government College in Gujranwala. When he was shown a school certificate issued by Quaid-E-Azam Cadet High School discovered from the Deceased's file with the Hong Kong Immigration Department, he said he did not know whether his son Shahzad had studied in this school. He suggested the Deceased instead of him should have produced the letter. He then went on to say that only the Deceased knew what education certificates he had with him and he did not know whether these documents existed for the Deceased. His answer in the witness box was difficult to reconcile with paragraph 7 of his affidavit dated 2^nd December 2005. In the said paragraph he said that personal belongings including school records of the Deceased were lost and they suspected Atiq had stolen them away. On further request to clarify he even said he did not know whether old pictures, as alleged in the said affidavit, were lost. He was therefore either telling lies under oath, or was remarkably careless when he gave evidence under oath. In either case his evidence is unreliable. In fact according to the complaint statement given to the Police by Tariq dated 2^nd October 2000, Tariq did not mention loss of any education certificates. Only one picture was alleged to have been stolen.

149. Hanif did not deny that according to Pakistan law, the birth of a child required to be registered, and that was in Form B. He also agreed on cross examination in order to fill up Form B, a birth certificate needed be shown. He did not answer direct whether the birth of Shahzad was registered late, only on 8^th August 1995. What he always said was that he was not in Pakistan when the registration of birth took place. It was not he, as suggested in the birth certificate to be the case, but the midwife who reported the birth when his son was born. 8^th August 1995 was only the date of issue of Shahzad's birth certificate when it was needed, not the date of report of birth. When he was questioned again later whether he agreed that the birth was a belated entry, he replied he did not know and said the document was not issued by him but by the relevant authority.

150. It was obviously stated on the birth certificate of Shahzad that it was a belated entry (pages 141 and 142 of the Witness Statement Bundle). The 9^th column in the certificate is headed “Date month & year when the birth was registered” and in that column it was stated clearly “8-8-95”. Further in the same document it was stated that:

“ The birth entry of Muhammad Shahzad is made today on 8-8-95, vide Chief Corporation Officer, Municipal Corporation, Gujranwala's order.
Sd/-
D.B.C.”

On a fair reading of the document, the registration of birth as evidenced by Shahzad's birth certificate was made on 8^th August 1995. I do not think there was any ambiguity in the document for Hanif to argue otherwise. Even the 1^st Applicant's counsel accepted that the registration of birth was a belated one.

151. Hanif was cross-examined on when and from whose accounts the money was withdrawn to pay the three funeral bills because he said they were paid in cash. Initially he said it was from his Hong Kong Bank (“HSBC”) account but later also said from Standard Chartered Bank (“SCB”). Later he said Tariq also contributed to it. Although Hanif agreed that he had three bank accounts including one maintained with Citibank and also there had been court order for discovery of bank accounts, he only disclosed, the account with HSBC (Bundle of Agreed Documents (2^nd Application) at pages 205 to 216). Later he said he could not remember exactly from which accounts he withdrew his money.

152. When he was shown that his HSBC account had only recorded (Bundle of Agreed Documents (2^nd Application) at page 214) a withdrawal of HK$1,900 between the period when the Deceased was injured and the dates of those three receipts, Hanif shifted to say that the rest of the money was from Tariq and Waqas. When the issue of who contributed to the said sum of HK$22,500 was put to him in cross-examination on 23^rd December 2005 shortly before lunch, he said money was from him and Tariq. He also said that apart from HSBC, money might have been withdrawn from his other bank accounts. On 23^rd December 2005 Hanif agreed to locate his SCB passbook and Citibank statement for the relevant period and bring them to court at the adjourned hearing. He agreed the sum of HKS22,500 had been reimbursed by the Respondent. He denied Atiq paid the said money.

153. However, when the trial resumed on 26^th January 2006, he said he could not find them despite efforts. His explanation was that they might have been thrown away. It appears to me that when the inconsistencies between his court statement and previous affidavit statement were exposed, he sought to escape by saying that they might be shown in some other documents which he had lost.

154. It is noted that in the 2^nd affidavit of Tariq dated 27^th January 2006, Tariq said that in fact on 19^th January 2000, he withdrew a total sum of HK$24,000 from three of his accounts, namely, HK$10,000 from HSBC, HK$10,000 cash advance from Citibank and another HK$4,000 from his Citibank account to meet the expenses of his brother's funeral. Certain bank records were shown and annexed to Tariq's said affidavit.

155. Assuming (without accepting) what Tariq had said was true, Hanif's evidence in Court would be untrue. If the rest of the money came from Tariq as alleged, there was no need for Hanif to look for records of his other accounts because they would not have assisted anyway. Hanif should have told the Court so on 23^rd December 2005.

156. Given that Hanif promised to produce documents in 2005 and said he could not locate them in 2006; and Tariq's said affidavit was only filed the day after Hanif said he could not locate his other bank records, Tariq's explanation should be received with caution. They came from the same family and obviously had common interest in the matter. Whether his explanation on the three bank withdrawal slips is to be accepted depends on whether on a whole Tariq was a credible witness. The written evidence of Tariq only surfaced after the 2^nd Applicant had finished his evidence.

157. In cross-examination, Hanif also said he stayed at the hospital during daytime both in December 1999 and January 2000 before the Deceased passed away. He agreed that the Respondent paid him his salary by crediting his HSBC account. The salary was paid on a monthly basis and calculated according to the days of his work. He agreed that his daily wages being HK$700 for 12 hours of work and what were stated in the Respondent's record concerning his wages were correct. Initially he said that he did not take any leave in December 1999 except on public holidays. In January 2000, he said he took leave and stayed in daytime in the hospital with the Deceased.

158. It was recorded in his HSBC record that Hanif received HK$19,600 and HK$18,200 as his salary for December 1999 and January 2000. According to the wages record provided by the Respondent concerning Hanif at pages 633 and 634 of the Bundle of Agreed Documents (2^nd Application), it was shown that Hanif even worked on a Sunday in December on which he got double pay of HK$1,400. Some 308 hours of work were recorded. There was an entry called “amount for paid SL” on the wage record for HK$700 and there was no evidence to suggest what this “SL” stands for. It may be “statutory leave” or “sick leave” or some other meaning. Assuming for the benefit of Hanif that he needed not work for this HK$700, Hanif's wages record for December suggested that he worked at least 26 days for December 1999, the month when his beloved eldest son of the family was seriously injured. When it was suggested by counsel for the 2^nd Applicant that he only went to the hospital during evening after he had finished his work and took no day off for taking care of the Deceased, Hanif insisted that he was with the Deceased during daytime, even in December. Hanif said that the company granted him leave in January until the Deceased passed away.

159. Although there was no wages slip for Hanif for January 2000 and therefore his explanation for the month of January may be probable, Hanif's explanation for the month of December was entirely unsatisfactory, and was inconsistent with the record of the Respondent which he did not dispute. Initially he said he did not take leave in December suggesting he worked in the month of December. When challenged, he insisted staying in hospital, suggesting that had been granted leave then. In any event what he said in Court simply does not tally with the Respondent's record. This was also inconsistent with the evidence of his son Tariq who said in his examination in chief on 1^st February 2006 that Hanif was granted leave since the Deceased was injured from the date of accident until end of January 2000. Hanif even could not tell the visiting time of the hospital clearly when questioned. He claimed to be at the bedside of the Deceased, yet he could not tell the Court such visiting time. If he were there everyday during daytime for over a month as alleged, it would be inconceivable that he cannot recall the visiting time of the hospital.

160. As expected, Hanif was also heavily cross-examined on the Agreement. Hanif denied the signature being his although he admitted it looked like his. He denied having seen it before trial and was not aware of the existence of this document before it was shown to him at trial. He did not deny having opened a joint account with Atiq in HSBC in May 2000. His explanation was that Atiq came to see him and said he wanted to open an account with chequebook for his business here. A chequebook would be available if a joint account was opened. He therefore agreed as requested.

161. He did not deny it might be Atiq who pay the initial sum of HK$5,000 to his solicitors BCC in May 2000. In his evidence, he made no mention at all about what Tariq had said in Court - Tariq had paid HK$7,500 back to Atiq and had consulted him before payment.

162. When asked why Atiq needed to be involved in his family's claim for employees' compensation, Hanif's version was, in gist, this. Atiq knew how to talk to lawyers. He knew the procedure because he had handled a case in Pakistan. He knew what to talk and what not. His English was better than him and his son. When questioned what was meant by Tariq not knowing much English, he said that at the time when lawyers were to be instructed Tariq's English was not that good.

163. I must say that I find his answer inconceivable and unbelievable. Hanif was in Hong Kong since 1969 and was in Hong Kong for over 30 years by 2000. His family and son, Tariq and Waqas were in Hong Kong. Yet he still have to rely on someone who was foreign to Hong Kong and only occasionally came here to do business to instruct lawyers on his behalf and to pursue the claim according to local law, not Pakistan law. Atiq did not even qualify to open a checking account in his own name locally. The explanation of Hanif offended commonsense.

164. Furthermore, Tariq had elected to give evidence in the examination in chief in English on the 13^th and 14^th day of the trial. Although he could not speak perfect English, I do not consider that he had any problem in expressing himself in English. In fact I find his English quite good and was very often fluent in his expression. Furthermore, according to Court's record, Tariq did appear on 6^th April 2001 before H.H. Judge Yung in relation to a summons against the Immigration for discovery of documents. The hearing lasted for an hour. Tariq did take part and made submission in English to the Court on Hanif's behalf without any interpreter. In fact, according to his first statement to the Police as early as 2^nd October 2000, he elected to provide such statement in English and had this to say in paragraph one of the statement:

“…I received education in Pakistan and completed high school and can read and speak English. I don't require the interpreter for me.”

165. Further, in paragraph 4 of Tariq's 2^nd witness statement dated 12^th December 2005 filed herein, he said Atiq came to stay with them in their Kwun Tong flat and sometimes went to visit the Deceased. He then stated that:

“…I would communicate with doctors since my English was better than others.”

He seemed to suggest his English was better than those going to visit the Deceased, including Atiq. It would be difficult to accept that Tariq's English was so bad that Hanif saw the necessity to ask help from Atiq, who was a stranger to this Jurisdiction to help instruct a lawyer.

166. In fact, according to Court's record Tariq did appear on at least one more occasion, i.e. 10^th June 2005 and addressed the Court in English. I simply cannot accept Hanif's explanation as truthful.

167. No doubt Hanif was also cross-examined on the evidence of Director Malik and the report of the Sub Inspector. He initially admitted having attended Director Malik's office in Islamabad once and visited by the Sub Inspector. Later he said that the Sub Inspector came to his house twice in total, instead of there being four interviews as alleged by Director Malik. He said when showing the grave of the Deceased to the Sub Inspector in the presence of local councillor Raja Munir, the nameplate of the grave had already been there. It was the Sub Inspector who did not pay attention to it. The plate had already been there about one month after the Deceased's death when he returned to Pakistan.

168. After a series of questions about the grave plate, counsel for the 2^nd Applicant put to Hanif that there was no plate on the grave when the Sub Inspector went there. Hanif said he did not remember anything whether there was a plate. He said there was actually a grave which he had taken the said local councillor and the Sub Inspector to. When he was asked to confirm there was no plate to identify whose grave it was, he shifted back by saying he had taken picture of the grave and the grave was with a plate. He then said he did not know why they did not record the fact down.

169. Hanif was also shown and cross-examined twice on his statement to the Sub Inspector dated 20^th July 2001 (pages 693 to 698 of the Witness Statement Bundle), once on 26^th January 2006 and the second time on the next day. On the first occasion he admitted the statement was signed by him but said it was the Sub Inspector who wrote the statement. Later on he shifted and said he did not recall whether or not he signed any statement. However when he was asked again the same question the next day on whether the signature on the second page of the statement in Urdu was his (page 694 of the Witness Statement Bundle), he paused for about 2 minutes. His initial reply was that he was unable to read the Urdu. When further asked to give an express answer he said it was not his signature and he did not know what was written there. He said he was not educated and was unable to read the Urdu language. He was firm that he did not give any statements to the Sub Inspector nor had he promised the Sub Inspector to produce any documents. He denied having produced the certificate by Mandiala Tega Government School to the Sub Inspector.

I do not believe him for a moment. He was playing the same old trick he did on 23^rd December 2005 (see paragraph 144 above).

170. A DVD video produced by Atiq was played in court for about 45 minutes. It contained, inter alia, an excerpt of the wedding of Atiq. Although it was not played while Atiq gave evidence, counsel for the 1st Applicant did not object to show the same to Hanif. While the DVD was played, Hanif could identify that his deceased son Shahzad was captured in many shots in the video although on occasions Atiq told the Court that the person referred to was in fact the Deceased's brother Faiz, who looked like the Deceased. Hanif also identified that the Atiq's father Mr. Abdul Rehman also appeared in the video. He did not deny that his family was not seen in the video. His explanation was basically that only Shahzad was invited to the wedding banquet and therefore the rest of the Hanif's family was not seen in the video.

171. However, according to paragraph 6 of Tariq's 1^st witness statement to the court dated 2^nd May 2002, Tariq expressly said the following when he said that Atiq had on one occasion taken money to his family in Pakistan:

“…or on one occasion to the account of Atiq-ur-Rehman, the son of Abdul-ur-Rehman, a long standing friend of my father(my emphasis).”

172. Further, when Tariq continued to talk about why Atiq was entrusted with the duty of taking the body of the Deceased to Pakistan, he said:

“…At that time Atiq was the son of a trusted friend of my father and we would be grateful for his help… (my emphasis)”

173. As Atiq had not in his evidence in chief identified Faiz in the said DVD, I will not draw any inference on the part of the evidence when Hanif mistook someone allegedly called Faiz to be the Deceased. However, the Court is entitled to draw inference from undisputed part of evidence when the DVD was played to Hanif. It was not disputed by counsel for the 1^st Applicant that the video concerned the wedding of Atiq and Hanif was not at the wedding banquet. If Hanif and Mr. Abdul Rehman were good friends and trusted friends, one would wonder why only Shahzad but not Hanif was invited. The explanation of Hanif was unsatisfactory and is totally unconvincing.

174. I must say that after observing Hanif in the witness box for 4 days, I have no doubt to conclude that Hanif is a dishonest witness although he always intended to portrait himself to be an ignorant, simple, uneducated but honest man. The examples in the preceding paragraphs illustrate well how evasive Hanif was when he was challenged on the inconsistency of his evidence which he could not come up with a convincing explanation. He simply pretended to be ignorant and put up various excuses. These excuses included his ignorance of English, poor education level and absence from Pakistan etc. He sought to hide behind all these excuses. His answers were always shifting and vague. I have no hesitation to reject his evidence totally. He is cunning and is an unscrupulous liar.

The 1^st Applicant Tahira

175. Tahira was the elder sister of the Deceased. As expected, she was also under heavy cross-examination by Mr. John Wright, counsel for the 2^nd Applicant. For the reasons stated below, I also find her a dishonest witness.

176. She said that she did not know why Waqas (his younger brother) was removed from the original application as a dependant. When asked why there was a change of applicant of the 1^st Application, she said she did not know. She seemed to agree to the suggestion that she had not been explained why her father Hanif did not want to be the 1^st Applicant. Without referring to her statement, she could only recall the day and year of birth of the Deceased but not the month. She could remember only the year of birth of some of her younger brothers and sisters but not the months and days. For her youngest sister of Sophia who was about 14 years younger than her, she could only recall the month and the year of birth with difficulties. Her explanation was that her family did not celebrate birthdays though she agreed to counsel for the 2^nd Applicant that some people in Pakistan do celebrate birthdays of children. She did not answer direct whether it was common or uncommon for families in Pakistan to celebrate birthdays but said that her mother Madam Bibi told them celebrating birthdays was a custom of the Hindus. Muslims (which they were) did not celebrate birthdays.

177. Although there was no evidence of any Muslim custom adduced in this respect, I am unable to accept Tahira's explanation as satisfactory. Her explanation seemed to be inconsistent with the explanation of Tariq in relation to the same series of questions put to him in his cross-examination. According to Tariq, their family was a poor one and therefore they could not afford to celebrate birthdays. Tariq agreed that rich people in Pakistan celebrate birthdays in Pakistan. If not celebrating birthdays was the special tradition of a Muslim family, one would expect that Tariq and Tahira, who come from the same Muslim family and were brought up together in Pakistan, would tell the same religion reason.

178. She also said she could not remember at what age she attended and left school but confirmed she had studied for 9 to 10 years. She also testified that in Pakistan children normally went to school at the age of 4 to 5. She said she could only remember the name of two schools which the Deceased had studied when he was small, namely, Yasar Idea School and Qasam (or Kasam) Model School which were in the same locality of her home. She said his brother Shahzad had studied up to the 14^th Class in Government College. However, when shown with an undated letter purportedly be issued by one Quaid-E-Azam Cadet High School certifying Shahzad had attended Class 10^th which was supplied to the Hong Kong Immigration Department (page 267 of Bundle of Agreed Documents (2^nd Application)), she said that she did not know about this school nor did she know whether his brother Shahzad had attended that school. She said that she never took much interest to ask him.

179. Being brought up together in Pakistan and whose age were only one year apart, I find Tahira's answer that she had no knowledge of Quaid-E-Azam Cadet High School and took no interest to know Shahzad's education unconvincing.

180. The 1^st Applicant said in her cross-examination that all the Deceased's school certificates were stolen by Atiq in Hong Kong after his death. Upon further cross-examination she admitted that she had not been told specifically that the Deceased's school certificates had been stolen. She was only told some of the very important documents had been stolen. At last she shifted and said she had only been told that the documents stolen included school certificates and passport.

181. In a nutshell what she said in cross-examination was this: Shahzad brought some of the documents, including school certificates to Hong Kong. After his death, since Atiq was a good friend of his father Hanif, he was entrusted with taking the dead body back to Pakistan. A few days after arrival in Pakistan, Atiq took some documents in an envelope to her family. She was present when this occurred. Atiq later came again asking for those documents back together with further documents that the family might have about Shahzad. Atiq wanted to take some of them to Hong Kong. The family did what was told accordingly. They did not know how many and what documents had been taken by Atiq. This matter was told to her by her sister Musrat Bibi.

182. Such allegation was apparently different from her affirmation made on 15^th July 2002 (Pages 142 to 145 of the Pleadings Bundle). This affirmation was filed in compliance with an order by H.H. Judge Muttrie against the 1^st Applicant for specific discovery of her and her brother Shahzad's school attendance records. In the said affirmation, the 1^st Applicant had this to say under oath:

“ 2. …All the documents pertaining to the education of my deceased brother, Muhammad Shahzad and myself would be in Pakistan at our home if such records were not lost due to family movements in the past years. (my emphasis)
3. I am presently in Hong Kong and am not residing in Pakistan. I do not have in Hong Kong any of the documents sought. Further, I did not know if such documents still exist and in compliance with the order dated 2^nd July 2002, I have endeavoured to contact my family members by telephoning them on 7^th of July. I was informed by my younger sister Musrat Bibi and verily believe that all documents were lost. (my emphasis)”

183. The 1^st Applicant confirmed the affirmation being affirmed by her. Counsel for the 2^nd Applicant suggested that an interpreter should have interpreted the above contents to her as he had affirmed in the same affirmation that he had done so. While she said that she did not remember whether the interpreter had read the contents to her, she insisted paragraph 2 incorrect. On being further pressed by Mr. Wright, she later explained that the taking away of documents by Atiq was only made known to her by Musrat Bibi after she had made the said Affirmation. However she could not recall why and under what circumstances she asked her sister again about the same matter. She however said later that this arose when the lawyer's boss asked her. She admitted that she was in Pakistan with her family when the matter about Atiq taking away the documents had allegedly taken place.

184. I find her answer difficult to accept and have no hesitation to reject her explanation. It has to be remembered that she filed the affirmation pursuant to a specific directions for discovery of Shahzad's education documents. She considered it necessary to make enquiry and in fact did so with her sister in Pakistan. She then came up with the answer in the said affirmation. It was simply inconceivable that her sister, Musrat Bibi, did not tell Tahira what Atiq had done if that had actually been done. Atiq should have been regarded a family enemy, a thief and a trouble-maker at least as at 2002 when she made the affirmation, bearing in mind that their father Hanif, the family head, had once been arrested in 2000 by the Pakistan Police because of the alleged unfounded complaint of Atiq. Her evidence in the box was inconsistent with her previous answer in the affirmation.

185. The fact that Shahzad's education documents were stolen has never been mentioned by Tahira in her witness statement, nor has Tariq mentioned it in his witness statements and affidavits. Neither has it been mentioned in Tariq's statements to the Police too. It was only briefly mentioned by Hanif in his affidavit filed shortly before this trial commenced. The issue of education documents has been raised as early as in 2002 when the 2^nd Applicant sought court order for specific discovery. Yet no allegation of theft was mentioned in all these statements filed. So Tahira's evidence, at least in this respect, is totally unreliable. In my judgment, like Hanif, she was lying as she went along in the witness box.

186. When Tahira was asked why there was no photographs of Shahzad taken together with the 1^st Applicant and/or her parents and/or other brothers and sisters or of the whole family, her answers was this: either it was not a necessity that a photo be taken of a child or that such might have been taken but she did not know or it depended on Shahzad because he might not want them to be taken.

187. The 2^nd Applicant was able to obtain a 3^rd party discovery order against the Immigration Department for documents in Shahzad's Immigration file. Two photographs were discovered (pages 252 and 253 of the Bundle of Agreed Documents - 2^nd Application). The first photo showed the 1^st Applicant and other alleged family members (except her father, Shahzad and Tariq) standing in 2 rows and facing the camera. The second one showed Hanif, Shahzad and Tariq. It was then suggested to her that the reason for Shahzad taking no picture with the other family members in Pakistan was because he simply was not a member of the Hanif's family. The 1^st Applicant gave no further explanation and maintained that Shahzad was her brother.

188. I find her answers strange and unsatisfactory. I of course do not believe there exists any rule requiring a person to take photos. However, taking photographs, particularly for families with children, has become so popular that it has become part of life nowadays. If her case is that the Hanif's family was so poor when Shahzad and her were young that they could not afford a camera, I would expect her to tell this Court so. That was not her answer. If Shahzad disliked taking pictures, being his sister I would also expect her to tell the Court right the way his brother's preference. This, again, was not her answer. She only said Shahzad might not want to have them taken. If he had family photographs which had been stolen, no doubt she would tell the Court. Again, this was also not her answer. So the inference is that Shahzad may have got family photographs taken of him but these photographs are not disclosed in support of her Application. Tahira in fact was trying to avoid these questions.

189. Tahira said that her father did not accompany the dead body of the Deceased back to Pakistan because he had to take care of her mum, whose condition got even worse because of the death of her young son. She had high blood pressure. No mention was made about her father Hanif's health being a reason. When cross-examined, Tahira said that her parents would go through again the same funeral who had taken part in Hong Kong if they flew back. Since the Deceased's sisters, brothers and uncles were in Pakistan, his father therefore entrusted his younger brother, i.e. her uncle to take care of the funeral in Pakistan.

190. The uncle referred to by Tahira was Mr. Munir Ahmed who she said was her “father's real brother”. Tahira said it was her said uncle who took charge of the funeral in Pakistan after the dead body of the Deceased had arrived. Her evidence was that she even did not go to the graveyard and was only told by her said uncle after the funeral on what actually happened in the funeral and where the grave was. It was because elders had said that according to custom, ladies were not allowed to go to graveyard when the burial funeral took place.

191. In this connection, the 1^st Applicant was referred to Madam Bibi's written statement dated 3^rd July 2002 and filed herein on 30^th August the same year by Mr. Wright, counsel for the 2^nd Applicant. In paragraph 15, Madam Bibi had this to say:

“…It was a great pressure for all of us, both for the immediate events, and also planning for the future of the family now that Shahzad had died. My daughter Tahira took charge of things on the return of the body to Gujranwala. I went back in February when my husband and I had a better idea of how we could arrange family matters.”(my emphasis)

192. Tahira replied that she was responsible in the sense that it was she who asked her uncle to go to the airport receiving the body of her brother. Her uncle said she being a lady should better stay at home and he would do the rest of the work. Whatever her uncle told him to do, she agreed. She had asked her uncle to find the gravedigger and the money was paid by her. She added whatever her father and mother told her to do, she told her uncle to carry them out.

193. If there is a custom in the Pakistan as alleged by Tahira that ladies are not allowed to go to the graveyard in funeral, it would be difficult for her to take care of the funeral of Shahzad in Pakistan as alleged by her mother Madam Bibi. If there is such custom, is it more logical to expect any of Hanif, Tariq or Waqas to go back with the dead body to take care of the funeral. Further, one may query why Hanif did not directly ask his brother to take care of the matter. If it were Tahira's uncle who took care of the funeral, it would be more logical for Madam Bibi to say that it was Hanif's brother who handle the matters. I have reservation to accept Tahira's explanation as truthful.

194. Furthermore, in answering the series of questions put to her about the funeral arrangement by counsel for the 2^nd Applicant, Tahira referred the Court to an undated receipt in English, purported to be issued by the gravedigger and was signed by both the gravedigger and her uncle. It was attached to the witness statement of the 1^st Applicant (page 505 of the Witness Statement Bundle). Further she referred to a chop affixed to the said receipt. It was a round one bearing the words “Muhammad Yunus, District Courts, GUJRANWALA” along its circumference and in the middle, the words “OATH Commissioner”. A signature appeared to have subscribed next to the chop. She said how could this receipt not a genuine one if it bore such chop.

195. I will not accept this receipt as a genuine one. It is inconceivable that a gravedigger, being a low occupation in Pakistan, would issue a receipt in English for digging a grave. Further it appears odd and too artificial that a gravedigger would require his customer, Mr. Munir Ahmed, who was described as “real uncle of the deceased” to sign such receipt. Further, what makes it more unbelievable was that the said receipt was affixed with a chop purported to be that of a Commissioner of oath of the District Court of Gujranwala. There was no evidence to explain what the purpose of the chop was. Why is it necessary to issue a receipt to someone described as a real uncle of a dead person? Why is it necessary for Mr. Munir Ahmed to sign such receipt? What useful purpose it serves by stating the relation of the client and the deceased being “real”? Why is it necessary to affix a chop of a commissioner of oath of a court to such a receipt? Is it for authentication or is it simply a must for every receipt issued by gravediggers in Pakistan? The receipt is just too real to be true.

196. By reasons of the above I have no doubt to find that Tahira was also an untruthful and dishonest witness. She is also a liar. I therefore reject all evidence given by her in support of the identity of Shahzard.

Tariq

197. Like Hanif and the 1^st Applicant, Tariq was under heavy cross-examination by Mr. Wright, counsel for the 2^nd Applicant. He admitted he was the main person giving instructions to the solicitors in the 1^st Application because his English was the best among the three.

198. Tariq agreed that the photographs produced by him as evidence herein only showed him and the Deceased but not with other members of the Hanif's family. His explanation was that they still had such photographs in Pakistan. He said they were not exhibited as evidence because he had not been asked. Apart from being inconsistent with the answers given by the 1^st Applicant (see paragraphs 186 to 188 above), I find his explanation difficult to accept.

199. The allegations against the Hanif's family in the present case are serious ones. The Atiq's family said that they are the rightful claimants. The Deceased is the son of Abdul Rehman instead of son of Hanif. They accused the Hanif's family of forging documents to assist Saif entering Hong Kong by the name of Shahzad. So they said Shahzad did never exist, at least prior to the issue of a forged Pakistan passport by that name. If the 2^nd Applicant was successful, the only inference is that the Hanif's family is telling lies. One may even be driven to the conclusion that fraud and illegal acts have been perpetrated by the Hanif's family, both in Hong Kong and in Pakistan in connection with this matter. So Tariq was reasonably expected to come forth with solid evidence, in particular, traces of life of Shahzad from birth to at least 1995 in order to defeat the 2^nd Applicant's claim.

200. I do not think Tariq is ignorant of how to put in evidence to support their case. Even two DNA laboratory reports of Tariq and Tahira, whose parentage is not crucial in the present proceedings, were produced. In fact Tariq also realized the importance of family photographs in the contest. He did annex photographs to his 1^st Affidavit filed herein. In the same affidavit he said in paragraph 6 the following:

“After I went back to Pakistan I managed to obtain some photographs which were taken of me and the deceased and the photographs were taken in 1992 and 1993. This is now produced and shown to me marked Exhibit “TM-2”

201. Yet no photographs of the Deceased together with other members of the Hanif's family in Pakistan were shown by Tariq or Hanif or Tahira. There was no mention in the affidavit that apart from those photographs exhibited all others had been stolen by Atiq. How can he now say that he had not been asked for? He knew the importance of photos as evidence and saw fit to disclose some. His answer in this respect is unconvincing and evasive.

202. Tariq answered in the cross-examination that the Deceased attended the following schools:

i) Yasir Idea School;
ii) Qasim Modern School;
iii) Government Jamie Comprehensive School; and
iv) Government College.

He said he was not sure whether his brother had attended any school by the name of Quaide-E-Azam Cadet School.

203. When questioned as to why, if all the education certificates of Shahzad were stolen, he did not obtain them again from these schools again. Tariq's explanation was that it was difficult in Pakistan to obtain again certificates which had been lost. But he said he did personally go to Jamie High School. That was done some one and a half years ago at a fee of PKR100. He said he was not given a receipt for the fee paid. He said he had given his name and address to a school clerk called Hameed who agreed to send over the documents to him. He did not know the surname of this Hameed or his telephone number or that of the school. No documents were received at the end of the day. He therefore went to the school again to chase for the documents in October 2005. Yet he had not received any documents from the said school. He did not ask one from Qasim Modern School as it was closed. He did not ask from the Government School because he did not have time.

204. Again, like family photographs, school documents are importance traces of the life of Shahzad. Tariq also realized the importance of this category of documents. He did try to ask for re-issue of such documents. However, it would be difficult to believe that he would follow up important documents in such a lax manner as described in the preceding paragraph.

205. When Tariq was cross-examined in the afternoon of the 14^th day of trial, he was initially asked about his allegation that Atiq had taken away a lot of the Deceased's documents. However, Tariq said apart from those documents such as identity cards and education certificates, Atiq had also taken away some of his, his father's and Tahira's documents. He said photocopies of his own school documents, photographs, letters, his HKID card, photocopies of Tahira's HKID Card, passport, school certificates and birth certificate, his father's agreement with the Respondent, photocopies of all his sisters' passports were taken away by Atiq some time in May 2000.

206. Tariq was questioned on why he did not state in his 1st Police statement (see paragraph 209 below) that Atiq also stole Hanif's, Tahira's and his own documents. His explanation was that he told the Police what he could remember at the time of the complaint. He also said there was no mention of taking away of his letters because they were not important documents.

207. His explanation is difficult to understand and is unbelievable. The documents belonging to other members of the family which Tariq said to have been stolen by Atiq were so numerous that, in my judgment, would not have been missed the attention of Tariq.

208. Obviously, Tariq's evidence in Court that Atiq had stolen Shahzad's school certificates is also inconsistent with his 1^st Police statement. In that statement he did not mention that these certificates were stolen. As set out in the preceding paragraphs when I discuss Tahira's evidence on this subject, Tahira also did not mention in her said affirmation that Atiq had stolen these documents. What she had said was that those documents had only been lost. If they had been stolen by Atiq sometime in May 2000, Tariq should have discovered that and reported to the Police in October or in December 2000 or in July 2002 when Tahira was asked to specifically deal with these education documents of the Deceased. Tariq admitted he was the one who knew English and therefore it was he who had given instructions to the lawyers. It would be unbelievable that as at 2002 it still did not ring a bell when his lawyers liaised with him about these documents. In my judgment it could not have escaped Tariq's attention. So there is a strong inference that both Tahira and Tariq were lying to the Court as they went along.

209. Tariq was cross-examined at length on his following statements to the Police and Legal Aid Department (“LAD”):

i) statement to Police dated 2^nd October 2000 (“1^st Police statement”) (pages 28 to 30 of Bundle of Agreed Documents (1^st Application));
ii) statement to Police dated 8^th December 2000 (“2^nd Police statement”) ”) (pages 31 to 34 of Bundle of Agreed Documents (1^st Application)); and
iii) statement to the LAD dated 12^th February 2001 (“LAD statement”) (pages 403 to 408 of the Witness Statement Bundle).

210. In paragraph 6 of his 2^nd Police statement, Tariq had this to say:

“My family took my brother's body back to Pakistan on 2000.01.19.”

211. When he was asked why he said that his family took the body to Pakistan but in fact it was not, his explanation was this: when he said “family” he meant “my family members”; and “family members” actually meant Atiq and Nasir. He explained that whoever were attached and in the family were called “family members”. Unrelated and respectable persons were also called “brothers” apart from brothers related by blood.

212. This explanation of Tariq was totally inconceivable. It has to be borne in mind that as at June 2000, Tariq were on bad terms with Atiq. According to Tariq, Atiq had stolen a lot of documents from them. On 2^nd October that year, he made his 1^st Police statement complaining Atiq having stolen documents from his family. He had given evidence that Atiq “blackmailed” them for a sum of HK$100,000 for return of documents in June 2000. Atiq was no a doubt a thief in the mind of Tariq and Hanif. Because of Atiq's complaint his father was even arrested in Pakistan in June 2000. It will be beyond any reasonable person's imagination that he still regards Atiq as his family member.

213. In fact a very lengthy letter setting out a summary of the 2^nd Applicant's claim was sent to Deacons on or about 21^st September 2000 (page 400 of the Witness Statement Bundle), solicitors for the Respondent. When it was put to Tariq that his 1^st Police statement was prompted by the said letter to Deacons, he also did not deny. Initially he said he did not remember whether by then he was aware of the rival claim. Upon dwelling on this question for about 15 minutes he admitted. However, later he retracted and said he was not sure. In answering this series of questions I find him evasive and always trying avoiding the questions. I find his answer totally unbelievable.

214. Some two months after his 2^nd Police statement he said in his LAD statement in strong terms that Atiq was not his relative as follows:

“I state quite categorically that Atiq is no relative of our family at all and his claims that his brother and sister are dependents of my brother are completely lie….” (paragraph 23)

215. I must say that I am shocked by Tariq's explanation about “family” in his statement and do not accept that for one moment. It would be beyond anyone's comprehension that he referred Atiq, who should have been regarded by him as a thief and a troublemaker then, as a “family member” in December 2000. His said explanation is totally absurd and offends common sense. In my judgment, the only reasonable conclusion is that Tariq, by so saying in his 2^nd Police statement, was repeating the same lie which Madam Bibi and Hanif had told Director Malik and the Sub Inspector in Pakistan – Madam Bibi took the body back to Pakistan. Tariq was caught in this lie and he tried to explain out. He failed.

216. Tariq appears to me to be clever but definitely not a credible and truthful witness. He knew English and admitted being the one giving instructions to his solicitors on behalf of the Hanif and Tahira. As seen above, he did appear for his father Hanif and sister Tahira at various court hearings. By reasons of the above, I have no doubt to conclude that he is the mastermind of this litigation and is in the driving seat. In my judgment, like his father Hanif and sister Tahira, he was lying as he went along in the witness box. I have no hesitation to reject totally his entire evidence. Tariq is also a liar.

Waheed

217. Waheed is a last minute witness of the 1^st Applicant. The gist of his evidence was that he knew Hanif, Tariq and the Deceased were father and sons. He had witnessed the three sharing a lunch box. He knew no name of the Deceased called Saif. However, he admitted it was not necessary for him to verify their relationship as many workers who were relatives to each other do work at the airport.

218. Although Waheed did not appear to me a dishonest witness, his evidence about the relationship of the Deceased and Hanif must necessarily be hearsay. How can Waheed, who only came to know the Deceased in 1997, give reliable evidence that the Deceased was the real son of Hanif? I do not consider his evidence of much value. If the evidence of Tahira, Hanif and Tariq fails, I do not see how Waheed's evidence can help.

Atiq

219. Atiq was the first and primary witness of the 2^nd Application. With the assistance of legal aid, he flew to Hong Kong to give evidence. I find him a mature, a reasonably educated but not a sophisticated person. He elected to give evidence in Urdu. Having observed him for something like 4 days in the witness box, I have no doubt that he is a truthful, reliable and honest witness. His evidence is logical, sensible and coherent. Although it has been submitted by counsel for the 1^st Applicant that Atiq gave inconsistent and evasive answers when questioned about the discussions amongst family members in relation to Saif going to Hong Kong and the arrangement with Madam Bibi to falsify documents, I find that there are no major discrepancies in these parts of his evidence. There was also no discrepancy on major parts of his evidence and he was unshaken in the cross-examination. He is that kind of a truth witness. I accept his evidence on all major points. Whenever his evidence conflicts with that of the witnesses of the 1^st Applicant, I prefer to accept his evidence.

220. His evidence consisted of oral evidence and two detailed written statements with substantial exhibits that he had also adopted. Almost all of them were contained in the two Agreed Documents Bundles. He also produced the originals of these documents for inspection of the Court and the other party. He gave a full account of his brother called Saif from birth to death. He produced originals of Saif's education records, family photographs at different ages taken together with different members of the family. He also produced Saif's birth registration document, his Pakistan identity card, and Pakistan passport. The library cards and the identity card issued to his brother Saif in Pakistan all bear the same photograph of the Deceased affixed to the Pakistan passport by the name of Shahzad. This is not in dispute. He went on to give an account on how Saif entered Hong Kong by assuming another name and as son of Hanif. The birth record of his brother Saif showed a contemporaneous report of birth while that of Shahzad showed a belated register of about 20 years.

221. Further he produced the Agreement signed by Hanif and Tariq although Hanif and Tariq denied its existence. However the existence of the Agreement was supported by subsequent undisputed facts: Atiq opened a joint account with Hanif and was involved initially in the 1^st Application. His account of why and how he was initially involved in Hanif's 1^st Application was supported by contemporaneous documents, such as correspondence exchanged with BCC and the joint account opened with Hanif. His explanation of the purpose of the joint bank account - to keep track on the compensation money, is more sensible than that offered by Hanif. All these documents fit perfectly well with Atiq's version which is more sensible and believable than what Tariq, Tahira and Hanif have told. I believe Atiq's story about the Agreement.

222. When Atiq was cross-examined by counsel for the 1^st Applicant, he was asked why he did not ask witnesses to the Agreement to give evidence. His initial answer was that if necessary they would come. The same question was put to Mr. Wright, counsel for the 2^nd Applicant by me. In the closing submission Miss Gwilt, counsel for the 1^st Applicant prayed in aid of the maxim omnia praesumuntur contra spoliatorem (“the maxim”). She relied on the following judgment by Le Pichion JA in the Court of Appeal decision in Tullen & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKC 713 at p.723A to F:

“ in relation to the fourth point above, Mr. Huggins SC prayed in aid the maxim omnia praesumuntur contra spoliatorem (maxim) sometimes referred to as the principle in Armory v Delamirie (1722) 1 Str 505. Excerpts expounding that principle from Wigmore on Evidence (Chadbourn Revision, 1979) Vol 2, at paras 285 and 291 were quoted in the judgment of Fuad JA in Hongkong and Shanghai Banking Corp v Chan Yiu Wah [1988] 1 HKLR at 467C-H:
285. Failure to produce evidence, as indicating unfavourable tenor of evidence:
(1) In general. … The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.
The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. Ever since the case of Chimney Sweeper's Jewel [Armory v Delamirie] this has been a recognized principle.”

223. Before the conclusion of the trial, Mr. Wright, counsel for the 2^nd Applicant submitted that they had managed to find the witnesses (of course except Tariq presumably) of the said agreement. He informed the Court that Nasir's Uncle and Arif were out of jurisdiction and Imam Farid was unwilling to testify. I have no reason to doubt Mr. Wright's reply. Understandably, Imam Farid would be quite reluctant to be involved in the matter for the obvious reason that he might be in trouble in the likely event that Shahzad is found to be non-existent.

224. The maxim is not applicable if there is good explanation in support of some hypothesis than the usual one being the party's fear of exposure. I accept the explanation of Mr. Wright rendered on behalf of the 2^nd Applicant that simply no one within the jurisdiction is willing to testify. I accept this explanation. I do not consider the maxim operates against the 2^nd Applicant in the present case.

225. Counsel for the 1^st Applicant had suggested to Atiq that the envelope (page 114 of Witness Statement Bundle) containing a letter purported to be sent from Tariq to Saif in 1994 might have been bought somewhere (see paragraph 28 above). It had not been suggested that Atiq forged that envelope. I have personally inspected the original envelope produced by counsel for the 2^nd Applicant. It was clearly affixed with a stamp then currently used in Hong Kong and cancelled by a round date chop of “Hong Kong 4:00pm 15 Jul 1994”. The envelope was addressed to “Saif-ur-Rahman S/O Abdul Rehman” at the family address of Atiq. At the back the sender was Mr. Mohammad Hanif with the sender's address being one Gurkha Restaurant at Kam Tin.

226. Tariq had in fact been asked questions on this envelope by counsel for the 2^nd Applicant. He denied having sent such letter or any letters at all to Saif but admitted that in 1994, he used the address of a Gurkha Restaurant in Kam Tin where there was a garage which his father worked as his postal address. He was then living in Ping Shan of Yuen Long. In my judgment, it would almost be impossible to buy such an envelope bearing exactly the particulars that fit in the present case. Furthermore there are also other similar envelopes exhibited as evidence and the particulars thereon, such as addresses, also fit in the facts of this case.

227. It has also been suggested that all the letters including cards to Saif, no matter from Tariq or family members, or other documents were forged. In this connection I agree to the submission of counsel for the 2^nd Applicant that the sheer scale of the task facing anyone forging the enormous volume of documentary evidence would be truly daunting, indeed, next to impossibility. Furthermore, after reading all those letters, if Atiq were to forge them for the purpose of stealing the identity of the Shahzad, I would have expected the alleged plan of bringing the Deceased to Hong Kong at PKR3.5 Lak, and the name of culprits such as Madam Bibi, Hanif and/or Tariq be more explicitly mentioned in those letters. Further, there appears to be unnecessary to fabricate some letters, e.g. the one to his little sister Amina (see paragraph 37 above) saying nothing but only trivial family matters– sharing with her the local dialect he had learned and the curious things he experienced in Hong Kong. After observing Atiq in the witness box for 4 days and in Court for the rest of this trial, I do not think Atiq is ingenious and sophisticated enough to fabricate these letters and attended to such minute details. I have no doubt to accept these envelopes and the whole bundle of personal letters produced by him showing the truth of the contents.

Director Malik

228. Director Malik was involved in the investigation of this case because the Interpol Police of the Pakistan received a request from its Hong Kong counter-part. He therefore issued attendance orders against a number of persons including Atiq and Hanif, requiring them to attend his office in Islamabad for enquiries. He personally interviewed 4 persons, Atiq, Hanif, Mr. Abdul Rehman and Nasir's Uncle. He was assisted by the Sub Inspector. Some statements of the interviewees were taken by the Sub Inspector in his presence, e.g. the statement of Hanif dated 20^th July 2001. So it cannot be said his report was based on hearsay evidence. He had carried out a verification exercise. Based on evidence available from other Government departments he found out that the attesting officer on the birth registration record of Shahzad produced by Hanif was not even traceable.

229. Although the report of the Sub Inspector is hearsay evidence, like the evidence of Director Malik, they are officers of the Pakistan Government and have no interest in the outcome of this litigation. There was no suggestion that the reports by Director Malik and the Sub Inspector were biased, nor was there any allegation that they wrote their reports out of ulterior motives. There is simply no evidence before this Court that Director Malik or the Sub Inspector had any motive to conceal or misrepresent matters. I found Director Malik a truthful, reliable and honest witness and accept the content of his report as truthful.

230. In fact Hanif did not deny that he had been investigated by the Sub Inspector. The difference seems to me to be that he had not been interviewed for so many times as stated in the reports and he had not behaved in the manner as said in the Sub Inspector's report. He denied what was said in the Sub Inspector's report was fact. Apart from Hanif's evidence, there was no other evidence from the 1^st Application to impeach the Sub Inspector's report. Given the way Hanif answered the questions on these two reports (see paragraphs 167 to 169 above) and given my conclusion that Hanif is a dishonest witness and a liar, and for reasons as stated in the preceding paragraph, I accept the Sub Inspector's report as evidence and as to the truth of the contents stated therein.

Rashid

231. Rashid was a colleague of Atiq who claimed to know his family before Saif came to Hong Kong. His was unshaken in the cross-examination. When he was asked to identify the photograph of the Deceased he was heard by counsel for the 1^st Applicant to have said “Mohammed Sh…” before he immediately correcting himself to “Saif-ur-Rehman”. I believe that it was only a not unusual slip of tongue rather than a so-called “Freudian slip” as suggested by counsel for the 1^st Applicant. I found him an honest witness and accept his evidence.

Mahbood

232. He was a colleague of the Deceased and later and continued to keep in touch with the Deceased socially after the latter left the company. He had once lived in container adjacent to that of the Deceased. He knew the Deceased had a name called Saif. His evidence obviously has more probative value than that of Waheed for the obvious reason that he knew the Deceased socially and even lived together for some time (see paragraph 92 above) while Waheed was only acquainted with the Deceased. His knowledge that the Deceased had a name called “Saif” was also corroborated by some documents recovered by Atiq from the Deceased belongings - the name in the identity card of the Trials & Motorcross Club and the envelope of the Vocational Training Council showed the name of “Shahzad Saif” and Mr. “Saif” respectively (see paragraph 41 above). I found him an honest and brave witness and have no doubt to accept that his evidence was truthful.

Tanvir

233. It was through Mahbood that he knew the Deceased. He had once worked and lived with the Deceased. It was his evidence they lived in adjacent containers for some time. They cooked and ate together. He knew the Deceased was called Saif. I found him an honest and brave witness and accept his evidence as truthful.

Generally

234. I must say that documentary evidence relating to the life of Shahzad before the time he came to Hong Kong is scant. On a balance of probability, the 1^st Applicant simply fails to satisfy this Court that the Deceased is Shahzad. On the other hand, the Atiq family has produced a wealth of documents proving the existence of Saif including birth certificate with contemporaneous registration, education documents from nursery up until college, family photographs from young boy to grown up, letters and birthday/greeting cards exchanged between family members, identity card issued by the Pakistan Government affixed with the same photograph as that affixed to Shahzad's Pakistan Identity Card and passport. There was also evidence on how this Saif becomes Shahzad and entered Hong Kong.

235. It had been suggested by counsel for the 1^st Applicant that there was no photograph showing a grown-up Saif with his family. I disagree. There are pictures annexed in the witness statements of Atiq which Atiq had confirmed to be Saif taken with their family members. In any event these photographs are contained in the Bundle of Agreed Documents (2^nd Application) the admission of which was dealt with by consent. I have carefully looked at some pictures identified by Atiq to show a younger version of Saif (the pictures on pages 438[middle and lower], 441[middle and lower], 442[upper and middle], 443[upper and lower], 444[lower] and 445[lower] of the Witness Statement Bundle) and compared them with the photographs of the Deceased affixed to the passport of Shahzad and the pictures identified by Tariq to be his deceased brother (pages 122, 211, 212 and 213 of the Witness Statement Bundle). I consider photographs produced by Atiq show a child/young man with features such as big eyes which are striking similar to the photographs of the Deceased. After comparing these photographs I accept these photographs refer to the one and the same person, the person identified as Saif by Atiq. I also accept the two photographs appeared on the two passport bearing respectively the name of Saif and Shahzad are one and the same man, i.e. Saif, although the Saif version is with moustache. The appearance of Saif looks strikingly similar to the one appeared in the picture he took with Atiq's wife (page 216 [lower] of the Witness Statement Bundle).

236. Concerning the passport issued by the name of Saif, it is noted that the same was issued on 23^rd July 1998. It had never been used. It was Atiq's evidence that his brother Saif left Hong Kong on 4^th April 1998 and arrived at Lahore Pakistan the next day. He stayed in Pakistan for about four and a half months. He departed Lahore on 18^th August and arrived at Hong Kong on 19^th August 1998. According to Atiq, the passport by the name of Saif was applied for by his brother Saif during his stay in Pakistan.

237. According to the passport record of Shahzad, it showed that Shahzad had left Hong Kong during exactly the same period. An air ticket issued by the name of Shahzad was exhibited by Atiq (page 307 of the Witness Statement Bundle). This ticket was a flight from Hong Kong to Lahore transient Bangkok. It was Atiq's evidence that he recovered this air ticket from belongings of the Deceased in Hong Kong. In addition, three passport size photographs which were exactly the same as the one affixed to Saif's passport were also retrieved by Atiq from the Deceased belongings. The evidence just fit in perfectly well. I do not believe that it is by chance rather than by arrangement that Saif's passport was issued when Shahzad left Hong Kong. I choose to believe just the other way round. I prefer to accept Atiq's evidence that his brother Saif applied for issue of the passport after he had returned to Pakistan using Shahzad's passport.

238. As described in the preceding paragraphs, apart from the birth certificate with belated registration and some family photographs, there are almost no pre-1995 traces of life of Shahzad. None of the photographs showed the Deceased with other family members. Those relied on by Tariq and annexed to his statement showed basically he and the Deceased. That in fact supports the case of Atiq that Tariq and the Deceased were good friends before they came to Hong Kong. As far as documentary evidence is concerned, I must say that there is a “missing link” in the life of Shahzad.

239. Although no expert on Muslim custom was called, I consider Director Malik, who was with the Pakistan Police for 40 years and is now retired, a respectable person and is in a position to tell what he considered to be usual or unusual funeral custom in Pakistan. His evidence is that it was unusual for parents not to coming back with the dead body of their son to Pakistan for burial. That is another important piece of evidence shedding light that the Deceased is no son of Hanif and Madam Bibi.

240. After hearing the evidence of witnesses and comparing the two birth certificates, I prefer to accept as evidence the one produced by Atiq, which shows a registration of birth two days later. I accept as truthful evidence all the exhibits annexed to the witness statement of Atiq and in the two Agreed Bundles of Documents in so far as they support the identity of the Deceased being Saif.

241. I reject the contents of Form B filed by Hanif and the belated birth certificate of Shahzad as truthful. Accordingly, I also reject the contents of all other documents issued based on, in support of, or in consequent to this birth registration or identity of Shahzad, including but not limited to the Pakistan passport and identity card, the Hong Kong identity card issued in the name of Shahzad as truthful evidence and contained in the two Agreed Bundles of Documents.

242. I also have no hesitation to reject Abdul Rehman' evidence as contained in his two statements, one given to Director Malik and the other filed herein, on the simple ground that the two statements are inconsistent with each other. In one of them he said he had no son by the name of Saif. In the other one he said his son Saif had passed away.

243. The evidence adduced at the trial overwhelmingly shows that the Deceased is called Saif-ur-Rehman, son of Abdul Rehman and not Muhammad Shahzad or Mohammad Shahzad, son of Hanif; and is a brother of Atiq and not brother of Tahira and Tariq.

244. Counsel for the 1^st Applicant had cited a number of cases including the House of Lords decision in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, and the Hong Kong Court of Final Appeal decision in HKSAR v Lee Ming Tee (2003) [2004] 1 HKLRD 513 to support a proposition that drawing of inferences and in particular inferences of fraud or serious misconduct should only be drawn where such inferences are compelling, and an otherwise approach will immediately lends itself to conjecture and prejudice.

245. Lee Ming Tee is the highest authority and no doubt has set a correct and proposition of law binding on this Court. In my view this authority reiterates a principle that where there is cogent evidence, adverse inference can be drawn. Based on the wealth of evidence adduced by the 2^nd Applicant and analyzed above, I consider that there is sufficient cogent evidence to come to the conclusion that Shahzad did not exist before the Hanif's family used false documents to register his birth in Pakistan in 1995.

246. Counsel for the 1^st Applicant also submitted that we had to believe our Immigration Department who had performed checks on the identity of the Deceased. The Deceased's Hong Kong Identity Card, Pakistan passport and identity card were all issued by the name of Shahzad. So prima facie the Deceased should be Shahzad. It was for the 2^nd Applicant to discharge the evidential burden to prove otherwise, and the 2^nd Application is only a mud throwing exercise with a view to discredit the already established identity of Shahzad.

247. With due respect to counsel's submission, I disagree. The fact of this case is that there exist two Pakistan identity cards issued respectively by the name of Saif and Shahzad with exactly the same photograph affixed. Again, there are two Pakistan passports issued by the name of Saif and Shahzad bearing different photographs but with strikingly similar features. There is also no evidence from the 1^st Applicant that the Immigration Department has carried out independent verification.

248. Although Hanif basically denied that he produced a letter from a school called Quaid-E-Azam Cadet High School, I have no reason to believe that the Immigration Department fabricated the letter or messed up its papers with other files. I believe that among the documents in Shahzad's Immigration file, there is such letter. However, neither Hanif, Tariq nor Tahira said the Deceased Shahzad had ever studied in this school. In fact, the 2^nd Applicant was able to produce a letter dated 7^th June 2002 from the same school sent to his solicitors through the Consulate General of the Islamic Republic of Pakistan in Hong Kong. This letter stated that according to the school record, Shahzad, son of Hanif of date of birth 6^th October 1975, was not a student of that school (Pages 268 and 269 of the Bundle of Agreed Documents (2^nd Application)). As such how could the 1^st Applicant say that the Immigration Department has carried out their checks?

249. I consider that each Applicant has to start off from the same ground. There is simply no presumptions that whoever lodges the application first will automatically acquire the status of the prima facie rightful claimant. In order to be successful each has to satisfy the Court on cogent evidence on a balance of probability that the Deceased was a member of their family.

250. Further, it has to be borne in mind that the present case is not one if on a balance of probability the Court finds in favour of one family, the other family is only the less probable dependants. The nature of this case is such that if the Court concludes that one party is rightful, it will be driven to the conclusion that the other party is telling lies and the documents given in support of the relationship false with a view to mislead the Court. Although that sounds serious, it is obvious as a matter of common sense and is the only conclusion that follows. So once the Court has concluded Atiq is the rightful claimant, the logical conclusion is that all evidence tendered by the Hanif's family should be false. There cannot be other conclusions.

251. There have in fact been accusations from Atiq, Tariq, Mahbood and Tanvir that the opposite side had tried to prevent them from coming to this Court to give evidence. I believe that they had already reported the matters to the local law enforcing agencies. By reasons of the above factual analysis, I do not consider it necessary to go into any of these allegations.

Conclusion and Orders

252. By reasons of the above, I make the following orders:

i) the 1^st Application (DCEC 493/2000) lodged by Tahira for herself and on behalf of the alleged dependants named in the 1^st Application against the Respondent be dismissed;
ii) judgment be entered for the 2^nd Applicant together with the dependants named in the 2^nd Application (DCEC 30/2001) against the Respondent for the sum of HK$1,528,800.00 under the Employees' Compensation Ordinance, Cap 282 plus interest at half judgment rate from the date of accident to the date of judgment, plus costs of the 2^nd Application against the Respondent up to and inclusive of 1^st December 2005, the date on which the Respondent made the unconditional open offer to the successful Applicant;
iii) nisi order that the Respondent do pay costs of and occasioned by the 2^nd Applicant for the application heard before H.H. Judge Ng on 17^th November 2005;
iv) nisi order that Hanif do pay the Respondent costs of and occasioned by the 1^st Application up to the date when Tahira was ordered to substitute him as the Applicant in the 1^st Application;
v) nisi order that Tahira do pay the Respondent costs of and occasioned by the 1^st Application after the said date of substitution;
vi) nisi order that the Applicant in the 1^st Application (DCEC 493/2000) do pay all costs of and occasioned by the Applicant in the 2^nd Application (DCEC 30/2001) in proving the identity of the Deceased, including the costs of this trial, on an indemnity basis, together with certificate for counsel, to be taxed if not agreed;
vii) nisi order that the 2^nd Applicant's own costs in the 2^nd Application and incurred in proving the identity of the Deceased vis-à-vis the 1^st Application be taxed in accordance with the Legal Aid Regulations; and
viii) the orders nisi will become absolute unless the party concerned applies to be heard on the question of costs within 14 days from the day of handing down of this judgment.

253. As I have said above, given the nature of the evidence of the parties, once I have reached the conclusion the Deceased being Saif, I am driven to the conclusion that Hanif and witnesses from his family put forward false evidence with a view to mislead this Court. It is also noted that according to the 1^st Police statement of Tariq he had kept the bankcards of the Deceased for withdrawing money. I therefore direct that a copy of this judgment be sent to the Secretary for Justice for further investigation as to whether any offences, including but not limited to perjury has been committed by anyone including Hanif, Tariq and Tahira. No doubt his investigation will also cover whether any one has applied for Letters of Administration to administer the estate of the Deceased.

(K.W. Wong)
Deputy District Judge

Miss Angela Gwilt, instructed by M/s Quan & Co for the 1^st Applicant in the 1^stApplication (DCEC 493/2000).

Mr. John Wright, instructed by M/s Burke Fung & Li (assigned by DLA) for the 2^nd Applicant in the 2^nd Application (DCEC 30/2001).

The Respondent in both Applications, represented by M/s Deacons, excused from attendance

35669-EN-2002-02-11

MOHAMMED HANIF v. PAUL Y.- SELI JOINT VENTURE

HTML content

DCEC 493/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 30 OF 2001

BETWEEN

	ATIQ-UR-REHMAN ON HIS OWN BEHALF AND ON BEHALF OF THE DEPENDANTS OF SAIF-UR-REHMANR OTHERWISE KNOWN AS MOHAMMAD SHEHZAD DECEASED	APPLICANT
	AND
	PAUL Y.- SELI JOINT VENTURE	RESPONDENT

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 493 OF 2000

BETWEEN

	MOHAMMED HANIF	APPLICANT
	AND
	PAUL Y.- SELI JOINT VENTURE	RESPONDENT

Coram: H H Judge Carlson in Court

Date: 11 February 2002

R U L I N G

1. It is ordered that the unless summons be adjourned generally with liberty to restore.

2. The applicant in DCEC 493 of 2000, do within seven days of today, provide to the solicitors for the Applicant in DCEC 30 of 2001;

(a) the passport numbers of the passports used/held by the Applicant.

(b) all dependants named in the amended application dated 27 September 2000; and

(c) his son, Mr Tariq Mahmood during the period 15 January 2000 to 31 March 2001.

3. The Applicant in DCEC 493 of 2000, do within 28 days from the date hereof, provide a copy of all Pakistani and other passports issued to (a) himself, (b) all dependants named in the amended application dated 27 September 2000 and c) his son, Mr Tariq Mamood.

(Submissions and discussion re costs)

4. I take the view that this is all the result of less than proper activity on the part of Boase, Cohen & Collins and of the persons who they represent. I think although Mr Carey has not achieved all that he set out to achieve in the unless summons that he has taken out, he has had orders which I would not have made if he had not come to court, and this is in the way of a warning shot to the other side, that they have really got to get on with it. This is all down to them.

5. And so I shall make orders that the costs of and incidental to the summons filed on 2 February 2002, including the costs of the hearing on 6 February 2002 and the costs of all preparatory work carried out by the solicitors for the applicant in DCEC 30 of 2001 in respect of the hearing on 11 February 2002, be paid by the applicant in DCEC 492 of 2000, to be taxed in default of agreement.

6. There will be orders for Legal Aid taxation in respect of the applicant’s costs in No. 30 of 2001 and No. 493 of 2002, in respect of the hearing of 11 February and to include all the costs of today.

(Submission by Applicant (DCEC30/2001 re costs)

7. Note: Mr Carey appeared at 9.30 am. Case listed at 9.30 am. Judge decided to deliver judgment in another matter which concluded at 10.30 am. This case called on. Mr Sit absent, but I presume, would have attended by 11 am when he mistakenly thought the case had been listed. Mr Carey sent away to 2.30 because judge now wished to proceed with a trial. Had Mr Sit been present at 10.30, this matter would have been heard at 10.30.

Ian Carlson
District Court Judge

Present: Mr T J Carey, of Messrs Ng, Lie, Lai & Chan, for the Applicant (in DCEC 30/2001)

Mr George Sit, of Messrs Boase, Cohen & Collins, for the Applicant (in DCEC 493/2000)

Respondent, absent

(a)	Applicant’s party and party taxed costs	$392,489.68
(b)	Applicant’s taxed common fund costs^{^[7]}	$10,561.00
(c)	Costs for applying payment out of security of costs	$10,495.00
(d)	Refund of taxing fee	(-) $15,801.00
(e)	Receipt of security for costs ordered to be paid by the Unsuccessful Claimant from High Court	(-) $125,000.00

	The net amount of costs paid by the Director:-	$272,744.68

i)	Muhammad Bibi (“Madam Bibi”), mother of the Deceased, partial dependant;
ii)	Tahira Parveen (“1^st Applicant”), elder sister of the Deceased, partial dependant;
iii)	Musrat Bibi, younger sister of the Deceased, partial dependant;
iv)	Shaheen Asiya (“Asiya”), younger sister of the Deceased, partial dependant;
v)	Shahzadi Sophia, younger sister of the Deceased, partial dependant;
vi)	Shahzadi Erim, younger sister of the Deceased, partial dependant; and
vii)	Haseeb-ur-Rehman, younger brother of the Deceased, partial defendant.

i)	Atiq-ur-Rehman, i.e. the 2^nd Applicant, the elder brother of the Deceased, partial dependant;
ii)	Saima Atiq, wife of 2^nd Applicant, partial dependant;
iii)	Faiz-Ur-Rehman (“Faiz”), younger brother of the Deceased, total dependant;
iv)	Farha Rehman (“Farha”), younger sister of the Deceased, total dependant;
v)	Amina Rehman (“Amina”), younger sister of the Deceased, total dependant;
vi)	Armin Balqees Rehman (“Armin”), daughter of the 2^nd Applicant, partial dependant;
vii)	Nofil Atiq (“Nofil”), son of the 2^nd Applicant, partial dependant.

i)	the 2^nd Applicant;
ii)	Mr. Safdar Ali Malik (“Director Malik”), Deputy Director of the Special Investigation Unit of the Federal Investigation Agency, Islamabad of the Islamic Republic of Pakistan;
iii)	Mr. Rashid Farooq (“Rashid”), a friend of the 2^nd Applicant; and
iv)	Mr. Mahbood Khan (“Mahbood”), a colleague of the Deceased in Hong Kong; and
v)	Mr. Ahmed Tanvir (“Tanvir”), another colleague of the Deceased in Hong Kong.

i)	the 1^st Applicant;
ii)	Hanif, father of the 1^st Applicant and the Deceased;
iii)	Tariq, son of Hanif and younger brother of the Shahzad;
iv)	Mr. Waheed Siddiq (“Waheed”), a friend of Hanif, Tariq and the Deceased.

i)	7 school certificates from St. Peter's English High School and St. Peter's School covering the period from 1979 (or earlier because the one on page 50 of the Witness Statement Bundle relating to his attendance of the Nursery of St. Peter's English High School was undated) to 1986 (pages 3 to 14 of the Bundle of Agreed Documents (2^nd Application));
ii)	1 certificate issued by a religious school in 1990 (pages 21 and 22 of the Bundle of Agreed Documents (2^nd Application));
iii)	2 certificates from Government Comprehensive School covering session 1990 to 1992 (pages 16 and 17 of the Bundle of Agreed Documents (2^nd Application));
iv)	1 Examination result issued by the Board of Intermediate & Secondary Education, Gujranwala for Secondary School (1^st Annual) Examination 1992 dated 22^nd July 1992 (page 15 of the Bundle of Agreed Documents (2^nd Application));
v)	1 Certificate of Distinction issued by the District Boy Scouts Association for the examination held from 28^th June to 5^th July 1991 (page 20 of the Bundle of Agreed Documents (2^nd Application));
vi)	1 Sports identity card (without photograph) issued by the Government College, Gujranwala (page 27 of the Bundle of Agreed Documents (2^nd Application) and certified translation page 78A of the Witness Statement Bundle);
vii)	1 Character certificate issued by the Government College, Gujranwala for the two years from May 1992 to 1994 (page 18 of the Bundle of Agreed Documents (2^nd Application));
viii)	copy of 1 Promotion examination for 1993 of the Government College, Gujranwala (page 81A of the Witness Statement Bundle);
ix)	copy of 1 Conditional result of Examination Intermediate (Final) 1994 issued by the Board of Intermediate and Secondary Education Gujranwala (page 81B of the Witness Statement Bundle);
x)	1 Library card issued by the Government College, Gujranwala with photograph of the Deceased (Page 84 of the Witness Statement Bundle);
xi)	1 certificate issued by the Board of Intermediate and Secondary Education Gujranwala for the Intermediate (Annual) Examination 1994 issued on 25^th September 1994 (Page 87 of the Witness Statement Bundle);
xii)	1 Library card issued by the Jinnah Municipal Library dated 15^th January 1995 with photograph of the Deceased (page 89 of the Witness Statement Bundle);
xiii)	4 fee slips for fees to Government College, Gujranwala (pages 91 to 94 of the Witness Statement Bundle);
xiv)	a number of photographs of Saif taken together with Atiq and other members of the Deceased's family including Atiq from childhood.

i)	By the name of Shahzad
	a)	Passport – issued on 2^nd July 1995 (Pages 121 to 139 of witness statement bundle);
	b)	ID Card – dated 15^th June 1995, with address at Almujahid Fans Street, Miller Road, Shaheenabad, Gujranwala.
ii)	By name of Saif
	a)	Passport – issued on 23^rd July 1998 (Pages 309 to 312 of Witness statement bundle);
	b)	ID Card – dated 29^th March 1995 with address at street of Haji Admed Din, Khokharki, Gujranwala;

i)	6^th April - 1^st May 1997;
ii)	27^th October - 24^th November 1998;
iii)	17^th December 1999 - 19^th January 2000;
iv)	6^th February - 17^th February 2000;
v)	24^th April - 31^st May 2000; and
vi)	20^th September - 2^nd October 2000.

“	I Mr. Haji Muhammand Hanif Son of Haji Muhammad Ismail solemnly declare that all the dues belongs to Saif to the company or in the form of insurance etc. which would be submitted to the court or the previous bank accounts of Saif or any other relevant items as much as or as many as, I and my son are obliged to return. If there is any trouble arises from my family side concerning insrance [sic] claim then I am responsible for that and Atiq-ur Rehman will be responsible himself for his family. A joint account will be opened for me, Muhammad Hanif and Atiq-ur Rehman in respect of the payment and the same account number will be given to the court so that each kind of payment be deposited into this account. Besides this any other way the lawyer suggests as appropriate can do. No cards of this account will be issed [sic] and no cheques books etc will be issued to both the parties without one another permision [sic]. And that I Haji Muhammad Hanif will sign ten blank cheques after receiving the cheques book. And that Atiq-ur-Rehaman [sic] will handle the case together with me.
	I am writting [sic] this statement consciously and without any pressure so that it may be used in the time of need and be as a proof. I have written this statement in front of witnesses.
	14/05/2000
		(Muhammad Hanif)
		XE 4381368
		14-5-2000
	Witness:		Witness:
	Haji Abdul Khaliq Fateh Jang		Tariq Mehmood s/o Muhammad Hanif
	204/48/078137		(P 4099927)
	Abdul Khaliq 14-05-2000		Tariq 14/05/2000
	Witness:		Witness:
	Hafiz Mr. Muhammad Farid		Muhammad Arif
	P 536238(9)
	(Farid)

i)	he and his brother Faiz;
ii)	Hanif and his son Tariq;
iii)	Haji Abdul Khaliq Fateh Jang (“Nasir's Uncle”), who was Nasir's uncle;
iv)	Hafiz Mr. Muhammad Farid (“Imam Farid”), who was an Imam of a Tuen Mun Mosque; and
v)	Muhammad Arif (“Arif”), who was a friend of the Deceased.

i)	statement dated 2^nd May 2002;
ii)	affidavit dated 8^th December 2005;
iii)	further statement dated 12^th December 2005;
iv)	2^nd affidavit dated 27^th January 2006; and
v)	3^rd witness statement dated 27^th January 2006.

“	The birth entry of Muhammad Shahzad is made today on 8-8-95, vide Chief Corporation Officer, Municipal Corporation, Gujranwala's order.
	Sd/-
	D.B.C.”

“	2.	…All the documents pertaining to the education of my deceased brother, Muhammad Shahzad and myself would be in Pakistan at our home if such records were not lost due to family movements in the past years. (my emphasis)
	3.	I am presently in Hong Kong and am not residing in Pakistan. I do not have in Hong Kong any of the documents sought. Further, I did not know if such documents still exist and in compliance with the order dated 2^nd July 2002, I have endeavoured to contact my family members by telephoning them on 7^th of July. I was informed by my younger sister Musrat Bibi and verily believe that all documents were lost. (my emphasis)”

i)	Yasir Idea School;
ii)	Qasim Modern School;
iii)	Government Jamie Comprehensive School; and
iv)	Government College.

i)	statement to Police dated 2^nd October 2000 (“1^st Police statement”) (pages 28 to 30 of Bundle of Agreed Documents (1^st Application));
ii)	statement to Police dated 8^th December 2000 (“2^nd Police statement”) ”) (pages 31 to 34 of Bundle of Agreed Documents (1^st Application)); and
iii)	statement to the LAD dated 12^th February 2001 (“LAD statement”) (pages 403 to 408 of the Witness Statement Bundle).

“	in relation to the fourth point above, Mr. Huggins SC prayed in aid the maxim omnia praesumuntur contra spoliatorem (maxim) sometimes referred to as the principle in Armory v Delamirie (1722) 1 Str 505. Excerpts expounding that principle from Wigmore on Evidence (Chadbourn Revision, 1979) Vol 2, at paras 285 and 291 were quoted in the judgment of Fuad JA in Hongkong and Shanghai Banking Corp v Chan Yiu Wah [1988] 1 HKLR at 467C-H:
	285. Failure to produce evidence, as indicating unfavourable tenor of evidence:
	(1)	In general. … The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.
		The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. Ever since the case of Chimney Sweeper's Jewel [Armory v Delamirie] this has been a recognized principle.”

i)	the 1^st Application (DCEC 493/2000) lodged by Tahira for herself and on behalf of the alleged dependants named in the 1^st Application against the Respondent be dismissed;
ii)	judgment be entered for the 2^nd Applicant together with the dependants named in the 2^nd Application (DCEC 30/2001) against the Respondent for the sum of HK$1,528,800.00 under the Employees' Compensation Ordinance, Cap 282 plus interest at half judgment rate from the date of accident to the date of judgment, plus costs of the 2^nd Application against the Respondent up to and inclusive of 1^st December 2005, the date on which the Respondent made the unconditional open offer to the successful Applicant;
iii)	nisi order that the Respondent do pay costs of and occasioned by the 2^nd Applicant for the application heard before H.H. Judge Ng on 17^th November 2005;
iv)	nisi order that Hanif do pay the Respondent costs of and occasioned by the 1^st Application up to the date when Tahira was ordered to substitute him as the Applicant in the 1^st Application;
v)	nisi order that Tahira do pay the Respondent costs of and occasioned by the 1^st Application after the said date of substitution;
vi)	nisi order that the Applicant in the 1^st Application (DCEC 493/2000) do pay all costs of and occasioned by the Applicant in the 2^nd Application (DCEC 30/2001) in proving the identity of the Deceased, including the costs of this trial, on an indemnity basis, together with certificate for counsel, to be taxed if not agreed;
vii)	nisi order that the 2^nd Applicant's own costs in the 2^nd Application and incurred in proving the identity of the Deceased vis-à-vis the 1^st Application be taxed in accordance with the Legal Aid Regulations; and
viii)	the orders nisi will become absolute unless the party concerned applies to be heard on the question of costs within 14 days from the day of handing down of this judgment.