SINGH CHAMKAUR v. RICHARD ETHAN LATKER t/a SINO INDIAN TRADE ENTERPRISES

CACV 270/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2009

(ON APPEAL FROM DCEC NO. 796 OF 2007)

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BETWEEN

	SINGH CHAMKAUR	Applicant
and
	RICHARD ETHAN LATKER trading as	Respondent
	SINO-INDIAN ENTERPRISES

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Before: Hon Tang Ag CJHC, Le Pichon JA and Kwan JA in Court

Date of Hearing: 22 February 2011

Date of Judgment: 22 February 2011

Date of Reasons for Judgment: 17 March 2011

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REASONS FOR JUDGMENT

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Hon Tang Ag CJHC:

1.  Mr Latker was the Respondent in DCEC 796/2007.

2.  On 15 June 2006, five persons were engaged in renovation work at a house in Sai Kung (“the Site”) owned by Mr Latker, amongst whom was Singh Chamkaur, the Applicant in DCEC 796/2007.  Mr Latker was not in Hong Kong on the day.

3.  The Applicant claimed that in the course of such work, he was injured in the foot when some bricks he was moving fell on his toes.  That became his claim in DCEC 796/2007. 

4.  At trial, two of the workers gave evidence on behalf of Mr Latker.  They were Mr Cheung Yui Hang (“Mr Cheung”) and Mr Raghu Nath Prasad (“Mr Prasad”).  Their evidence was that the Respondent was joy riding on a scooter which belonged to Mr Latker, and was injured when he fell.

5.  Mr Latker also gave evidence, in particular that the Applicant had admitted to him that he had taken the motor cycle for no reason and injured his foot as a result; and also to show that the Applicant had signed a receipt which recorded a deduction of one day’s pay from his wages for “Damage, dereliction”. 

6.  Another worker at the site was Mr Shah Rozan Ali (“Ali”), who was, according to Mr Latker, summarily dismissed on 29 June, because:

“The work vehicle [he] had entrusted Mr Ali with had been left with the windows open in the rain for at least a week. Mold was growing in the car. The worksite and [their] temporary residence was littered with garbage.”

7.  It was also Mr Latker’s complaint that Ali had fraudulently sided with the Applicant.  Ali was not a witness at trial.

8.  After trial, District Judge Chow found in the Applicant’s favour and awarded him damages in the sum of $45,700 together with interests and costs.

9.  Mr Latker was dissatisfied with the decision and he appealed to this Court, and his appeal was dismissed by us on 10 November 2010.  Our Reasons for Decision was handed down on 16 November 2010.

10.  The 5^th person at the Site was a Mr Leung Kin Shing (“Mr Leung”).  Mr Leung was not called as a witness.

11.  This is Mr Latker’s application for leave to appeal to the Court of Final Appeal.  He has also applied for a stay of execution under O. 45 r. 11 on the ground that prima facie evidence exists that the original verdict was obtained through fraud.  The summons was filed on 26 November 2010.

12.  Mr Latker has filed 8 affirmations.  We were told that in support of the application for a stay under O. 45 r. 11, he relied in particular on the affirmation of Mr Behull and the 1^st affirmation of Mr Lo Man Chun. 

13.  These two affirmations dealt principally with Mr Latker’s assertion that Mr Leung was an important witness whom he was unable to call at the trial.  That Mr Leung might have been able to give evidence on his behalf was well known to him, since in Mr Latker’s “Response to Application” dated 23 August 2007, at a time when he was acting in person, he said:

“In August 2007 [Mr Latker] conducted extensive interviews with [Cheung], [Prasad] and finally [Leung], to prepare witness statements. Digital audio recordings were made of the interviews. The men confirmed that no accident took place on the worksite, and the men confirmed that [the Applicant] injured himself while riding on [Mr Latker’s] motor cycle without permission.

Mr Cheung explained that he had left [Mr Latker’s] employment before his return from France because of consistent pressure from [Ali] to lie about the events of June 15 on [the Applicant’s] behalf.

[Mr Leung] also reported that [Ali] contacted him to solicit a false report of events.” See page 44 of the bundle

14.  Essentially, Mr Behull and Mr Lo’s evidence is that, at Mr Latker’s request, they have spoken with Mr Leung and that Mr Leung had confirmed to them that the Applicant was injured whilst riding a scooter. 

15.  According to Mr Behull, who had spoken to Mr Leung on the telephone:

“8. … he might write a sworn statement if he was sufficiently compensated for the ‘stress’ incurred in coming forward as a witness.

It seemed apparent that he expected a significant sum, but he would not say precisely how much he was seeking. He asked me repeatedly how much Mr Latker was willing to offer.

Finally, I told him that perhaps Mr Latker might offer HK$3,000 to compensate him for his time and effort (although Mr Latker and I had not really agreed on a figure). Mr Leung scoffed at the offer, saying he might as well do charity work. He then ended the conversation by disconnecting his mobile.”

16.  Mr Lo had actually met Mr Leung together with Mr Latker and acted as interpreter.  According to Mr Lo, Mr Leung said:

“11. … that he did not want to go to court unless he was going to be paid. He asked how much money Mr Latker was willing to pay.

12. Mr Latker replied that he could only compensate him a reasonable amount for any time and trouble as the law might allow, but could not pay him for testimony (which I translated as ‘Kui Lo’). Mr Leung remained silent for a while and did not respond to questions. …

……

21. Mr Latker asked him why he refused to testify in the case. Mr Leung said he did not want to go to court, and did not want (the Applicant) to come after him.”

17.  O. 45 r. 11 provides that:

“Without prejudice to O. 47 r. 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.”

18.  This case does not fall within O. 45 r. 11 at all.  Nor does the new evidence constitute any matter which has occurred subsequent to trial, or prima facie evidence of fraud.  Not only is Mr Leung’s evidence of dubious credibility, Mr Leung was a witness whom Mr Latker could have called had he exercised reasonable diligence at the trial.  Mr Latker was represented by solicitors and counsel at trial (although initially he acted in person) and on appeal.  Basically, what Mr Latker is trying to do is to reopen the trial or reargue the appeal which he is not entitled to do. 

19.  I will not deal with Mr Latker’s other allegations, for example, that the Applicant had lied at trial, on, say, the state of the renovation work on 15 June 2006.

20.  I turn to the application for leave to appeal to the Court of Final Appeal, I am satisfied that there is no basis upon which leave to appeal can be granted.  None of the requirements of section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 is satisfied.

21.  For the above reasons, I would dismiss both applications with costs. Such costs are to be taxed if not agreed.  The Applicant’s costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Le Pichon JA:

22.  I agree with the reasons for judgment of Tang Acting Chief Judge and Kwan JA.

Hon Kwan JA:

23.  I respectfully agree with the Reasons for Judgment of the Acting Chief Judge and I just wish to add this. In support of his proposition that the court should exercise its power to grant a stay under O. 45 r. 11 where there is evidence to show that the judgment was obtained by fraud, Mr. Latker sought to adduce new evidence before us to show that the evidence given by Mr. Prasad in Hindi before the judge was destroyed through poor quality translation. He said in his 2^nd affirmation filed on 21 February 2011 he had instructed his counsel to argue on appeal that the translation of Mr. Prasad’s evidence was “gravely flawed”. The contention about the quality of translation was not a matter raised before this court at the hearing of the appeal. It should have been raised at the trial. We would not have allowed this point to be taken on appeal, for the reasons given in paragraph 31 of our Reasons for Decision on 16 November 2010.

(Robert Tang) Ag Chief Judge, High Court

(Doreen Le Pichon) Justice of Appeal

(Susan Kwan) Justice of Appeal

 

The Respondent, in person, present.

Mr. Kamlesh Sadhwani instructed by Messrs Jal. N. Karbhari & Co. assigned by Director of Legal Aid for the Applicant

CACV 270/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2009

(ON APPEAL FROM DCEC NO. 796 OF 2007)

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

BETWEEN

	SINGH CHAMKAUR	Applicant
and
	RICHARD ETHAN LATKER trading as	Respondent
	SINO-INDIAN ENTERPRISES

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

Before: Hon Tang Ag CJHC, Le Pichon JA and Kwan JA in Court

Date of Hearing: 10 November 2010

Date of Decision: 10 November 2010

Date of Reasons for Decision: 16 November 2010

________________________________

REASONS FOR DECISION

________________________________

 

Hon Tang Ag CJHC (giving the reasons for decision of the Court):

1.  The applicant was a casual worker employed by the respondent to work at No. 1, Pak Fa Lam Road, Sai Kung, New Territories (“the Site”) which the respondent was renovating at the time. The applicant’s job included carrying bricks from a brick storage area to a platform next to a wall.

2.  The applicant claimed that, on 15 June 2006, in the course of such work, he was injured when a column of 4 or 5 bricks fell on his left foot.  It was the respondent’s (employer) case that the applicant was injured whilst joy riding on the employer’s vespa scooter. 

3.  After a trial which had lasted several days, Judge Chow gave judgment in the applicant’s favour.  The total compensation was assessed at $45,700.  This is the respondent’s appeal.

4.  The respondent was not in Hong Kong on 15 June 2006.  He called two witnesses on what happened on the day. 

5.  Mr Cheung Yui Hang (“Mr Cheung”) was a workman at the Site on the day of the accident.  According to Mr Cheung, he said, after the applicant had asked him repeatedly and insistently to let him ride on the vespa he felt he had no choice but to let the applicant ride it.  He said the applicant immediately rode it uphill at speed and within moments, he heard a bang.  He ran uphill and saw both the applicant and the motor cycle on the ground.  His evidence was largely corroborated by one Raghu Nath Prasad (“Mr Prasad”) who was employed by the respondent for sculpting and moulding.  His evidence was that the applicant had asked Mr Cheung if he could borrow the respondent’s vespa.  He then saw the applicant accelerating quickly and left the Site, rode up the slope for about 200 metres, lost control and crashed.  Then he saw the applicant limping down.

6.  Naturally, the respondent was unable to give any direct evidence on what happened.  However, he said the applicant had admitted to him after he had returned to Hong Kong that he had taken the scooter, damaged it and injured his foot.  He then deducted one day’s pay from the applicant’s wages to compensate in part for the damage to his motor cycle.  The applicant did not object and signed a receipt dated 23 or 24 July 2006 for payment which showed a deduction of one day’s wage for “Damage, dereliction”.  He said it was about one week later that the applicant telephoned him and claimed that he had injured his foot with a “falling brick” on the Site.  He asked about the motor cycle accident and the Applicant replied that it happened “later”.

7.  The applicant denied that he was injured whilst riding a scooter.  His case is that his injuries were caused by bricks falling on his foot.   The applicant was 66 in 2006.  He claimed to be illiterate and unable to drive a car or a scooter.  He said he had poor eye sight.  He was employed by the applicant at $350 a day.  However, at one time he had lent the respondent $17,000 to cover his workers’ wages when the respondent was away from Hong Kong.  So obviously, he was more than just an illiterate labourer.  He denied that he had ever ridden the respondent’s scooter.  He also said the respondent never explained the content of the receipt to him.  The applicant had sustained tenderness and swelling over his first and second metatarsal bones of his left foot.  There was no external wound.  X-ray examination showed fracture of head of proximal phalanx of left second toe and medial cuneiform bone.

8.  The medical record from the Accident & Emergency Department showed that the applicant was admitted on 15 June 2006 at about 17:37 hour.  The admissions record stated that his foot was crushed by “fallen machinery”, and the box on the record showing “Industrial injury” had been ticked.  Against that heading, there were hand-written words “Job injury” and “Crush”.  On 20 June 2006 there was a note made by the Department of Orthopaedics and Traumatology by the Hospital on a medical record stating:

“L foot contusion by a fallen brick”.

9.  The learned trial judge regarded the medical evidence consistent with the applicant having been injured by falling bricks. He said:

“16. … If the Applicant had fallen onto the ground, when the motorcycle fell on its left side, the left side of his body should have sustained some injuries, when the left side of his body came into contact with the surface of the ground. At this moment the motorcycle was still moving ahead and so this part of the body would grind with the surface of the ground. The injuries caused by such grinding would cover a wider area than the injuries just caused to 2 toes of the left foot. But there is no injury on the left side body of the Applicant. …”

10.  The applicant’s wife also gave evidence.  She could understand simple Chinese and speak some broken Cantonese.  She had gone to the hospital after receiving the applicant’s call. She interpreted for the applicant because he was unable to speak Punti.  The applicant told her that he was hit by a falling brick.  In return, she told the doctor what the applicant had told her. 

11.  The learned judge, after careful consideration of the evidence of the witnesses, had preferred the evidence of the applicant to the evidence given on the respondent’s behalf. 

12.  The learned judge said there was inconsistency between Mr Cheung’s oral evidence and a witness statement he had given on 20 February 2009.  Moreover, according to Mr Cheung, after the accident, he pushed the scooter back down the slope whilst the applicant limped on his left leg back to the Site, but Mr Prasad said the scooter was lying down on the ground and Mr Cheung helped the applicant back to the site without carrying anything in his hands.  Also according to Mr Prasad, the accident took place at about 3:30 p.m. to 4 p.m., but according to Mr Cheung, that had taken place between noon and 1 p.m.  Mr Prasad also claimed in evidence that he was able to see where the accident took place.  This is inconsistent with the evidence of Mr Cheung, who said that from where Mr Prasad and all the other workers  were standing, they could not see the accident.

13.  On the other hand, the learned judge found evidence given by the applicant credible and supported by what he (through his wife) had told the hospital.

14.  Essentially the trial turned on the credibility of the applicant and the respondent and his witnesses.  This is precisely the sort of case where a trial judge has an immense advantage over an appellate court.   

15.  Mr James Thomson, appearing for the respondent, has referred us to what Ribeiro PJ said in Tradepower (Holdings) Ltd v Tradepower (HK) Ltd [2010] 1 HKLRD 674 at para. 24:

“Inconsistencies between the testimony of a witness and other items of evidence had to be evaluated as part of the overall process of assessing credibility. It was not satisfactory first to form the view that the witness was generally credible and then to carve out exceptions in areas where inconsistencies with other evidence were found. Such an approach cast doubt on the initial assessment of credibility.”

16.  Also, Litton NPJ said in para. 140:

“Appellate courts had warned, repeatedly, against trial judges placing undue reliance upon demeanour and resolving factual issues by using the demeanour of witnesses isolated from the inherent probabilities of the case. It required no repetition here. The trial judge’s role was to try issues, not personalities. …”

17.  But what are the inherent probabilities of the case?  Is it inherently improbable that the applicant who had to transport bricks from one area to another was injured by falling bricks?  Is it probable that the applicant could have somehow pressed or forced Mr Cheung to let him ride the scooter and that he would ride it at speed up a slope?  Is it probable that two fellow workers should be willing to give false evidence against the applicant?  Is it probable that the applicant should made a false claim?  I can only say that this is not a case which can be decided on the inherent probabilities.  There is little on the facts to make one version more probable than the other.

18.  As for the receipt the applicant had signed, it is to be noted that prior to the date of the receipt the applicant had already told the Hospital that he was injured by a fallen brick.  Also upon admission, he had claimed that he was injured by a fallen machinery and that it was an industrial accident.  In other words, he had always maintained that his foot was injured by a falling object. So if he had already decided to make a false claim, why should he sign the receipt if he was indeed aware that he was thereby agreeing to pay compensation for the scooter.  Also, the receipt which recorded the deduction of one day’s pay is equivocal.  It is not clear what damage or dereliction was being referred to. 

19.  This is an appeal against a finding of fact and we cannot interfere unless we are satisfied that the trial judge was plainly wrong.  Ting Kwok Keung v Tam Dick Yuen and Ors (2002) 5 HKCFAR 336.  With respect, the decision which the learned judge had come to was fairly open to him.

20.  On 18 October 2010, the respondent applied for leave to adduce additional evidence on appeal.  The evidence takes the form of a medical report by one Dr Roelf S. Breederveld MD PhD dated 16 September 2010.  In the report Dr Breederveld expressed the opinion:

“… it is very unlikely that the combination of these two fractures is compatible with an injury caused by a single falling brick or bricks because of the location of these fractures and the characteristics of these fractures.”

21.  He went on to explain:

“15. In my opinion, the fracture of the ground phalange is caused by:

(a) An indirect trauma mechanism with overloading stress of the toe to the medial side or the plantar side, causing an avulsion fracture; or

(b) An axial injury through the axis of the 2nd toe, causing a disruption fracture by compression force in the 2^nd metatarsal phalangeal joint. This lesion by itself is very unlikely to be caused by a single fallen brick or bricks. This type of fracture is very common in motorcycle accidents. Typically in the case of putting a foot on the ground driving a motorcycle to prevent it from falling.

16. In my opinion, the fracture of the os cuneiforme medial is caused by a force through the axis of the foot, especially the 1^st toe and 1^st metatarsal bone such that it caused a compression-fracture of the mid-foot. This trauma mechanism is more compatible with a scooter accident. A brick falling onto the Applicant's left foot would cause a transverse or impact fracture which is a different type of injury, and it would bear the characteristics of a different trauma mechanism such as an open wound or skin laceration on the dorsal side of the mid foot.

17. Putting foot down. The abovementioned lesions in themselves, and in combination, are only compatible with deceleration forces on the foot, such as those experienced by a motorcyclist putting his foot out on the ground while the motorcycle is still moving. In such a case, grinding injuries to the foot or elsewhere are not necessarily incurred.”

22.  Even at trial, there are restrictions on adducing expert evidence, and procedures which have to be followed.  See O. 38 r. 36.  Yet Mr Thomson asks for leave to adduce expert evidence on appeal, and says that no retrial is necessary because the court could decide the matter on the basis of one-sided expert evidence.  Even assuming that Dr Breederveld’s status as an expert is established, we have no doubt that the application must fail. 

23.  The respondent has made an affirmation to explain why no report was obtained for the trial.  He said, for example, that local expertise on forensic analysis of an orthopaedic foot injury “is clearly rare or non-existent”.  He said that he had not received the applicant’s X-ray films until 2008.  But the trial did not take place until mid-2009.

24.  Whether evidence of forensic analysis of the applicant’s injuries should be adduced is a decision which should have been made before trial and the proper procedure regarding adducing such evidence complied with.  It is clear from the respondent’s affirmation that he had considered adducing such evidence at trial but decided not to do so because of shortage of local experts.  He should have sought overseas expert advice then.

25.  It is an unacceptable excuse to say that the desire to adduce such evidence was prompted by what the learned judge said in his judgment, quoted in para. 9 above.  The learned judge’s judgment has to be read in the light of the evidence before him.  Indeed, we have been supplied with the employer’s counsel’s (not Mr Thomson) written submission at trial.  There was no submission that the injuries could not have been caused by falling bricks.  The submission was:

“… that 4-5 bricks falling on his foot would have resulted in more serious injuries. Therefore his account does not match his injuries” .

26.  Mr Thomson referred us to Muscat v Health Professions Council [2009] EWCA Civ 1090 and submitted that the English Court of Appeal had expressed the view that after:

“… the CPR, a decision to admit fresh evidence was not to be confined within the old Ladd v Marshall straightjacket”

27.  However, Smith LJ went on to say that:

“… consideration of the Ladd v Marshall principles would, in my view, place a very great impediment before the exercise of a discretion in the appellant’s favour.”

28.  In the end, fresh evidence was refused, and Smith LJ explained:

“… The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked. Taking all the factors into account, (that is the first and second Ladd v Marshall principles, the public interest in the correct outcome in a striking off case and the existence of the Committee’s power of review) I have no hesitation in saying that I would exercise my discretion against the admission of this fresh evidence. I would dismiss the appeal on the first ground.”

29.  Under O. 59 r. 10 we shall not admit further evidence on appeal without special grounds.  With respect, we are not aware of any better statement of special grounds than those in Ladd v Marshall.

30.  The application cannot satisfy the first of the Ladd v Marshall conditions.

31.  It is unnecessary for us to express any view on the second and third of the Ladd v Marshall conditions.  We say only that if Dr Breederveld’s evidence had been adduced at trial, we should be surprised if they were not seriously contested.  Even assuming those conditions in the respondent’s favour, we do not believe this is a case where there are special grounds for admission of fresh evidence.  Finality which lies at the heart of these conditions strongly supports the rejection of such evidence.  Indeed, the respondent is trying to raise a new point on appeal.  As Bokhary PJ has explained in the Court of Final Appeal:

“38. … where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, … he will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.” Flywin Co Ltd v Strong & Associates Ltd [2002] 5 HKCFAR 356 at 369C.

32.  This is not such a case.

33.  For the above reasons, we have dismissed the appeal as well as the application to adduce further evidence with costs.  The applicant’s costs are to be taxed in accordance with Legal Aid Regulations.

 

 

(Robert Tang) Ag Chief Judge, High Court

(Doreen Le Pichon) Justice of Appeal

(Susan Kwan) Justice of Appeal

 

Mr. James Thomson instructed by Messrs Dundons for the Respondent

Mr. Kamlesh Sadhwani instructed by Messrs Jal. N. Karbhari & Co. assigned by Legal Aid for the Applicant