KWAN YIM KWAN, PEGGY v. NAMKUNG PROMOTIONS (WORLDWIDE) LTD

CACV 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.86 of 2008

(On appeal from HCPI No. 938 of 2004)

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BETWEEN:

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JUDGMENT

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Hon. Cheung CJHC:

1.  I agree with the judgment of Yuen JA and the order she proposes.

Hon. Cheung JA:

2.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

3.  This is an application by the Appellant for leave to appeal to the Court of Final Appeal from the judgment of this court given on 12 May 2009.  The application was only made on 18 August 2011 and is therefore clearly out of time. 

4.  No explanation has been offered by the Appellant for the delay of more than 2 years.  If only for this reason, the application should be dismissed.  However, as a matter of completeness, I shall proceed to consider the matters put forward by the Appellant in advancing her case for leave to appeal to the CFA.

History of proceedings

5.  The history of these proceedings, and the reasons for this court’s dismissal of the Appellant’s appeal from the judgment of Yam J of 20 February 2008 dismissing her action, have been set out in detail in our Reasons for Judgment handed down on 16 June 2008.  I shall not repeat them here.  Essentially the judge rejected the Appellant’s evidence as to how she was injured at work, and this court dismissed the Appellant’s arguments which sought to challenge that judgment.

Application for leave

6.  The Appellant is now seeking leave to appeal to the Court of Final Appeal on the ground set out in s.22(1)(b) Hong Kong Court of Final Appeal Ordinance cap. 484, i.e. that this appeal involved one or more question(s) of great general or public importance. 

The 1^st question

7.  As I understand the first “question” put forward by the Appellant, she suggests that the judge should not have accepted the evidence of Luk Wan Fung, to whom the Respondent had paid fees (other than as an expert witness) to attend court and give testimony.  Mr Luk had been employed by the Respondent at the time of the incident, but by the time of trial he had left the employ of the Respondent and become a consultant engineer.  The judge found that it was reasonable for Mr Luk to have been compensated.  More importantly the judge held, after seeing and hearing Mr Luk in the witness box, that he did “not find that he [Mr Luk] came to this court to lie just because he received remuneration”.

8.  The Appellant has referred to a footnote in Halsbury’s Laws of Hong Kong (Vol. 12(1) para.[175.230] fn. 5) to the effect that an ordinary witness (i.e. not an expert witness) could not at common law claim compensation for loss of time. However that is not to point.  The fact that Mr Luk received compensation from the Respondent did not render his evidence inadmissible, and the judge was aware of his receipt of compensation when assessing his credibility and reliability as a witness.

9.  I do not see any question of great general or public importance which merits leave to appeal to the CFA.

The 2^nd question

10.  As I understand the second “question” put forward by the Appellant, it is to the effect that there was no “direct evidence” to support Mr Luk’s testimony that he spent the greater portion of his time on the mainland and thus left the management of the office to the Appellant. 

11.  First, as noted in para. 22 of our Reasons for Judgment, Yam J had rejected the Appellant’s account of how the incident had occurred, and on appeal she did not dispute his findings of fact.  It was only as a fallback that the judge held that even if the incident had occurred as she alleged, she was solely responsible for the accident as she was responsible for keeping the office clean and safe, and no liability fell on Mr Luk to supervise her in the performance of those duties.  That would be so irrespective of how much time he spent on the mainland or in Hong Kong. 

12.  In any event, the second question is not one of great general or public importance which merits leave to appeal to the CFA.

Order

13.  Accordingly the application must be dismissed.  The parties having agreed that costs should follow the event, the Appellant should pay the Respondent’s costs of this application to be taxed if not agreed. 

The Appellant in person present

Mr Lee Tung Ming instructed by Deacons for the Respondent

CACV 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.86 of 2008

(On Appeal from HCPI No. 938 of 2004)

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REASONS FOR JUDGMENT
AND RULING ON COSTS

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Hon. Cheung JA:

1.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

2.  The Plaintiff appealed from a judgment of Yam J dismissing her action in personal injuries against her former employers.  At the conclusion of the hearing, we dismissed her appeal.  My reasons appear below. 

Background

3.  The Plaintiff claimed that on 29 October 2001, she was trying to retrieve some cardboard sheets (i.e. sheets to be folded into cartons) stored underneath her desk in her office in Ocean Centre, Tsimshatsui, when some sheets fell causing an injury to her eye.  The Defendant was her employer.  The Plaintiff sued the Defendant for damages in common law, the causes of action being negligence, occupier’s liability, etc.  The Defendant denied liability.

4.  The Defendant only had 2 employees working at those premises in October 2001.  Mr Luk Wan Fung was employed as a Senior Engineering Manager and the Plaintiff was employed as a secretary, responsible for office administration, general office work, etc.  Mr Luk joined the Defendant about 3 months before the incident, whereas the Plaintiff herself had been employed at the premises for about 9 months.

-  Trial before Deputy Judge Wright

5.  The trial was first heard before Deputy Judge Wright (now Wright J) in March 2006. 

6.  By the time of the trial Mr Luk was no longer in the Defendant’s employ and had become a consultant engineer.  Mr Luk gave evidence for the Defendant to the effect that (contrary to the Plaintiff’s allegation) he had not instructed her to place the sheets under her desk, and that it was the Plaintiff herself who was responsible for office administration including keeping the premises clean and safe. 

7.  Deputy Judge Wright dismissed the Plaintiff’s action. 

-  CACV144/2006

8.  The Plaintiff appealed Deputy Judge Wright’s judgment.  In the taxation of costs process it was revealed that the Defendant had paid some money to Mr Luk after the judgment and the Plaintiff argued that this was relevant to his credibility.

9.  This court (Cheung JA and Waung and Fung JJ) admitted the evidence of payment as it satisfied the conditions required for the admission of fresh evidence on appeal (para. 10).  The court held that Mr Luk’s payment was a matter which the trial judge should have been made aware of before he made findings on the credibility of the witnesses (para. 10).  The appeal was allowed without going into the merits and a re-trial was ordered (para. 11).

Re-trial before Yam J

10.  The re-trial was heard before Yam J in February 2008.  The Plaintiff’s case was that at about 9:45 a.m. on the day in question (a Friday), she was alone in the office and trying to retrieve some cardboard sheets to fold into boxes for sending samples the following Monday.  She said Mr Luk had ordered her to retrieve the sheets, which she said had been propped up under her desk behind piles of documents and samples which she said had been placed there by Mr Luk.  She said she had to remove the piles of documents and samples to get to the sheets, including having to move aside a chest of drawers weighing some 30 lbs, but then the sheets fell towards her and as she fell backwards onto the floor, having slipped on the carpet which she said was slippery and wet, one corner of a sheet hit her eye.

11.  The Defendant called two witnesses, Mr Luk and Miss Leung Kit Yee.  Mr Luk said that he had not ordered the Plaintiff to put anything underneath her desk, nor had he ordered her to retrieve any cardboard sheets for folding into boxes that morning.  He said in any event it was the Plaintiff herself who was responsible for keeping the office clean and safe, and in the course of his testimony he estimated that he was out of the office working on the Mainland for about one-third of the time.  Miss Leung worked as a secretary in the office after the incident, taking over from the Plaintiff who resigned about 5 weeks after the incident.

12.  Yam J had considerable doubts about the Plaintiff’s evidence and he accepted Mr Luk’s evidence “in spite of the fact that he required compensation from the defence” (para. 21).  The judge found that the compensation paid to Mr Luk was reasonable since he was required to spend time away from his consultancy business.  The judge said “I do not find that he came to this court to lie just because he received remuneration” (para. 21).  He also accepted Miss Leung’s evidence. 

13.  First, the judge rejected the Plaintiff’s evidence of how the injury occurred.  He did not accept her evidence that she was trying to retrieve flattened cardboard sheets from underneath her desk.  The Defendant was the customer of a courier company which was on the same floor and cardboard boxes were freely available from them.  The Plaintiff had sufficient time on the Friday morning to obtain boxes from the courier company to send the samples on the following Monday.   Therefore it was inconceivable that the Plaintiff would have gone to the trouble of moving a number of articles from underneath her desk, including a chest of drawers weighing 30 lbs, in order to retrieve cardboard sheets to fold into boxes when boxes were easily to hand (paras. 3-4). 

14.  The judge also rejected the Plaintiff’s evidence that the carpet was slippery and wet. He preferred the evidence of Mr Luk and Miss Leung that it was not so (para. 10) and found that the carpet had not needed cleaning (para. 12).

15.  The judge also found that in any event, even if the accident happened as the Plaintiff alleged, the Defendant was not liable as it was the Plaintiff who was in charge of running the administrative side of the office including making it clean and safe, which the Plaintiff accepted in cross-examination (para. 15).  He found the Plaintiff’s evidence as to why she had not arranged for the carpet to be cleaned unconvincing (para. 11). 

16.  Accordingly Yam J dismissed the action.   

CACV 86/2008

17.  The Plaintiff lodged an appeal from that judgment.  The original grounds of appeal were drafted in a general way as follows:

(1)  at trial, the judge erred in applying and was misleading about legal principles;

(2)  at trial, the judge erred in directing the cross-examination of witnesses;

(3)  the judge erred in hearing the witnesses’ evidence;

(4)  the judge erred in understanding the witnesses’ evidence.     

18.  In a supplementary notice of appeal annexed to a summons filed 2 working days before the appeal hearing which we considered de bene esse, the Plaintiff raised the following additional grounds:

(1)  there was no documentary evidence that Mr Luk was working in the Mainland for one-third of the time;

(2)  as Mr Luk was in Hong Kong for two-thirds of the time, he was also negligent and failed in his duties as occupier;

(3)  the judge should not have admitted evidence of a criminal case involving the Plaintiff as it was irrelevant to the issues before the court.   

Discussion

19.  At the appeal hearing, the Plaintiff sought to argue three points:

(1)  the judge was wrong to have accepted that the compensation paid to Mr Luk was reasonable;

(2)  the judge should not have admitted evidence of a criminal case involving the Plaintiff as it was irrelevant to the issues before the court;

(3)  as Mr Luk was in Hong Kong for two-thirds of the time, he was also negligent and failed in his duties as occupier.

20.  As for point (1), the Plaintiff sought to argue that the judge was wrong to have accepted that the compensation paid to Mr Luk was reasonable.  The Plaintiff sought to argue that there were inconsistences between Mr Luk’s participation in the proceedings and the items in two documents entitled “Witness Fee of Luk Wan Fung (HCPI No.938 of 2004)” at pp.178-9 of the Appeal Bundle.  Page 178 sets out details of witness fees for Mr Luk for the trial, and p.179, for the re-trial.  Both documents were dated 18 February 2008, the first day of trial before Yam J.  However the Plaintiff admitted in answer to questions from this court that when Mr Luk gave evidence at the re-trial, she did not cross-examine him on the items in the two documents which she now alleges to be inconsistent.  If the Plaintiff had done so, Mr Luk might or might not have provided satisfactory responses to the alleged  inconsistencies.  As such it was not proper for the Plaintiff to take this point on appeal.

21.  As for point (2), this refers to the Plaintiff’s conviction of deception arising from her use of cheques belonging to the Defendant, some months after her departure, for which she was sentenced to 5 months imprisonment.  In fact this conviction did not feature in the judgment at all.  The grounds on which the judge found that the Plaintiff was not a credible witness have been set out earlier in paras. 12-14 of this judgment.  Those grounds did not include the conviction.  In any event, I am not persuaded that the conviction was irrelevant to the issues in this case as it may have some bearing on the Plaintiff’s credibility and her attitude towards the Defendant.  The authorities cited to us by the Plaintiff to the effect that evidence of general good character is not relevant to boost the credibility of a witness in a civil case are not to point.

22.  As for point (3), it is plain from the judgment that given the matters which I have earlier set out in paragraphs 12-14, and having seen and heard the witnesses in court, the trial judge rejected the Plaintiff’s account of how the incident occurred.  As the Plaintiff said that she did not dispute the judge’s findings of fact, that was the end of her case.  It was only as a fallback that the trial judge held that even if the incident had occurred as the Plaintiff alleged, she was solely responsible for the accident as it was she who had stored the sheets under her desk and she had admitted in cross-examination that the allocation of duties in the office was that she was responsible for keeping the office clean and safe.  No specific training would have been necessary for those simple duties.  The judge was entitled to find in those circumstances that in any event, no liability fell on the Senior Engineering Manager to oversee the Plaintiff’s duties.  Accordingly the amount of time Mr Luk spent in Hong Kong was not relevant. 

Order

23.  Accordingly the Plaintiff’s appeal was dismissed.  As mentioned earlier, we had considered the summons with the supplementary notice of appeal de bene esse (para. 18).  Since there was no merit in the new grounds, the summons also fell to be dismissed.  No order for costs is necessary since the Defendant did not incur extra costs.     

Costs

24.  As for costs of the appeal, the Defendant asked for costs since it was successful in the appeal and the Plaintiff asked the court not to order her to pay costs.  At the conclusion of the hearing on 12 May 2009, we directed the Defendant to submit a statement of costs for summary assessment within 7 days and the Plaintiff to lodge any comments thereon within 7 days thereafter. 

25.  I see no reason to depart from the usual rule that costs should be awarded to the successful party in the appeal.  As for the quantum of costs, the Defendant submitted a statement of costs for summary assessment on 14 May 2009.  The following day, the Plaintiff wrote to the Defendant (with a copy to the Registrar of Civil Appeals) acknowledging receipt of the statement of costs and stating that she would “check and feed back my comment” on or before 21 May 2009.  However on 21 May 2009, the Plaintiff wrote to the Registrar of Civil Appeals saying that she would finish and feed back her comments “within few days” and would fax the copy of objections and questions to the Defendant and file it in the Registry of Civil Appeals “as soon as possible”.  However nothing was filed. 

26.  In the circumstances, we have considered the Defendant’s statement of costs.  I consider the manual work at $1,340 and counsel’s fee of $85,000 to be reasonable.  As for solicitors, I consider that as this was a simple case, item C1 (Attendance on client) can be reduced to 1 hour and items D1 and D2 (preparation of documents and perusal of documents) can also be reduced to 1 hour each.  That means a total reduction of $12,000 (3 hours at $4,000 an hour). I would accordingly order the Plaintiff to pay the Defendant costs assessed at $118,340.  

Hon. Andrew Cheung J:

27.  I agree.

CACV 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.86 of 2008

(On Appeal from HCPI No. 938 of 2004)

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JUDGMENT

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Hon. Yuen JA:

1.  The Plaintiff applied by summons issued on 17 April 2009 for discovery of documents, viz. travel records of Luk Wan Fung for the period between 27 July 2001 and 7 December 2001.  Mr Luk was a witness for the Defendant at the trial of HCPI 938/2004.  In a judgment given on 20 February 2008, Yam J dismissed the action.  The Plaintiff lodged an appeal on 3 April 2008.  She has made this application for discovery with a view to requesting the Court of Appeal to accept the travel records as fresh evidence on appeal.

Background

2.  The Plaintiff claimed that on 29 October 2001, she was trying to retrieve some cardboard sheets stored underneath her desk in her office when a cardboard box fell injuring her eye.  The Defendant was her employer.  The Plaintiff sued the Defendant for damages in common law, the causes of action being negligence, occupier’s liability, etc.  The Defendant denied liability.

Trial before Deputy Judge Wright

3.  The trial was first heard before Deputy Judge Wright (now Wright J) in March 2006.  The Plaintiff was then legally represented. 

4.  The Defendant called Mr Luk as one of its witnesses.  The Defendant only had 2 employees working from the office.  At the time of the accident, Mr Luk was Senior Engineering Manager and the Plaintiff was employed to assist him in office administration, general office work, etc. 

5.  By the time of the trial before Deputy Judge Wright, Mr Luk was no longer in the Defendant’s employ and had become a consultant engineer.  Mr Luk gave evidence for the Defendant to the effect that (contrary to the Plaintiff’s allegation) he had not instructed her to place the boxes under her desk, and that it was the Plaintiff herself who was responsible for office administration including keeping the premises clean and safe. 

6.  Deputy Judge Wright dismissed the Plaintiff’s action. 

CACV 144/2006

7.  The Plaintiff appealed Deputy Judge Wright’s judgment.  In the taxation of costs process it was revealed that the Defendant had paid some sums of money to Mr Luk including a sum of $10,000 about 3 weeks after the judgment and the Plaintiff argued that this was relevant to his credibility.

8.  This court (Cheung JA and Waung and Fung JJ) admitted the evidence of payment as it satisfied the conditions required for the admission of fresh evidence on appeal (para. 10).  The court held that Mr Luk’s payment was a matter that the trial judge should have been made aware of before he made findings on the credibility of witnesses (para. 10).  The appeal was allowed without going into the merits and a re-trial was ordered (para. 11).

Re-trial before Yam J

9.  The re-trial was heard before Yam J in February 2008.  Mr Luk was again called as a witness by the Defendant.  Yam J rejected the Plaintiff’s evidence.  He accepted Mr Luk’s evidence “in spite of the fact that he required compensation from the defence” (para. 21).  The judge found that the compensation was reasonable since Mr Luk was required to spend time away from his consultancy.  The judge said “I do not find that he came to this court to lie just because he received remuneration” (para. 21).

10.  The judge found that even if the accident happened as the Plaintiff alleged, the Defendant was not liable as it was the Plaintiff who was in charge of running the administrative side of the office including making it clean and safe.  The judge said “according to Mr Luk, he had to go to the Mainland in order to discharge his duties.  That would be about one-third of his time a year” (para. 8).

11.  Yam J dismissed the Plaintiff’s action.

CACV 86/2008

12.  The Plaintiff’s appeal from Yam J’s judgment (CACV 86/2008) is due to be heard next month.

Summons

13.  On 17 April 2009 the Plaintiff issued a summons for discovery of Mr Luk’s travel documents between 27 July 2001 and 7 December 2001.  The affirmation made in support of the summons says that this was the period of the Plaintiff’s employment and alleges that Mr Luk had not spent one-third of the time in the Mainland working for the Defendant as he had testified before Yam J.

14.  The summons is opposed by the Defendant.

Discussion

15.  It is clear that the summons should be dismissed.  It is an application made after judgment for discovery of documents which the appellant hopes to adduce as fresh evidence on appeal.  However it is clear from the principles governing the admission of fresh evidence on appeal (Ladd v Marshall [1954] 1 WLR 1489) that even if the Plaintiff had those documents already, they would not be admitted as fresh evidence on appeal.  Accordingly for this reason alone, the summons for discovery is futile.  

16.  The principles governing the admission of fresh evidence on appeal are well-established.  Whilst the Court of Appeal has power to allow fresh evidence to be adduced on appeal in the exercise of its discretion, this is not often or lightly done.  Where there has been a hearing on the merits, fresh evidence will generally not be admitted on appeal unless the three conditions set out in Ladd v Marshall are satisfied:

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

(2)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

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

However, if the evidence relates to matters which have occurred only after the hearing, the court has a discretion to admit such evidence, although the power is used sparingly with due regard to the need for finality in litigation (Hong Kong Civil Procedure 2009, §59/10/10).

17.  Mr Luk’s travel documents could have been obtained with reasonable diligence before or during the trial before Yam J.  The Plaintiff says that Mr Luk’s witness statement did not contain the specific allegation that he spent one third of the year in the Mainland and that this came out only during the trial before Yam J.  But there was nothing to stop the Plaintiff asking Mr Luk to produce his travel records there and then, as the Plaintiff asserts that the time that Mr Luk spent in the Mainland was a matter of controversy between the parties.  If Mr Luk were to be unwilling or unable to produce his travel records, the Plaintiff could have asked for an adjournment of the trial for those records to be sought by way of discovery.  The Plaintiff did not do so, and thereby failed to exercise reasonable diligence to obtain the evidence for use at the trial.  The first condition of Ladd v Marshall is not satisfied. 

18.  As those documents (even if the Plaintiff had them already) would not be admitted as fresh evidence at the appeal, the application for their discovery for that purpose is futile.  The summons is dismissed.

19.  As for costs I see no reason to depart from the usual rule that costs should be awarded to the successful party in the application.  Accordingly the Plaintiff is to pay the costs of the application to the Defendant, to be taxed if not agreed.