CACV 319/2021, [2023] HKCA 866
On appeal from [2021] HKDC 661
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 319 OF 2021
(ON AN APPEAL FROM DCEC NO. 1017 OF 2019)
____________________
| BETWEEN | | |
| |
LIN ZHINIAN (林枝年) |
Applicant
|
| | and | |
| | 林阮求 | Respondent |
____________________
| Before: | Hon Chu VP and Chow JA in Court |
| Date of Judgment: | 14 July 2023 |
_________________________
REASONS FOR DECISION
_________________________
Hon Chu VP (giving the Reasons for Decision of the Court):
A. Introduction
1. By summons filed on 18 April 2023, the respondent applied to amend his notice of appeal filed on 22 June 2021 and to adduce new evidence in his appeal. The summons is opposed by the applicant.
2. This appeal stems from the judgment of Deputy District Judge Rebecca Lee (“the Judge”) given on 7 June 2021 awarding to the applicant against the respondent employee’s compensation in the sum of HK$81,520 together with interest and costs. The notice of appeal was issued on 22 June 2021. On 20 July 2022, the appeal was listed for hearing on 21 February 2023.
3. As a result of the respondent’s failure to lodge a written submission, in breach of the directions of the Registrar of Civil Appeals of 6 July 2022 and Practice Direction 4.1 paragraph 57, Chow JA ordered on 1 February 2023 that the hearing date be vacated with the costs thrown away be paid by the respondent to the applicant, to be taxed if not agreed.
4. On 24 February 2023, the appeal was re-listed for hearing on 18 July 2023. At about the same time, the respondent, who was hitherto unrepresented, appointed his present solicitors, followed by the filing of the present summons on 18 April 2023.
5. On 20 April 2023, Chow JA directed that the summons be determined on the papers without an oral hearing.
6. On 7 July 2023, we ordered that the summons be dismissed with costs to the applicant and indicated that we would hand down our reasons in due course, which we now do.
B. The proceedings below
7. The case arose from an accident (“the Accident”) that happened to the applicant at about 7:00 pm on 2 July 2017 at a residential flat in On Hong Building, No. 39 Tai Pa Street, Tsuen Wan (“the Flat”), which was under renovation at the time. The applicant was standing on a platform in the kitchen and cleaning the wall tiles when his right foot stepped into a groove on the platform, as a result of which his right upper body fell onto the platform and his right chest crashed into a metal can that was placed on the platform.
8. One of the two main issues at trial was whether the applicant was an employee of the respondent or an independent contractor engaged by the owner of the Flat (“the Employment Issue”). The other issue relates to quantum, with which this appeal is not concerned.
9. The applicant is the uncle of the respondent, whose daughter, 林巧惠 (“Ms Lin”), is the owner of the Flat.
10. The applicant’s case is that he was employed by the respondent to carry out plastering work (泥水工程) at the Flat. The respondent’s case, on the other hand, is that he and the applicant were both independent contractors working on the Flat and while he was responsible for the plastering work, the applicant was carrying out plumbing and electrical work (水電工程).
11. The trial took place on 8 April and 4 May 2021. Both parties acted in person at the trial. They were the only witnesses.
12. By her judgment handed down on 7 June 2021, the Judge found the applicant an honest witness and accepted his evidence. She found the respondent not credible and rejected his evidence. Based on the evidence she accepted and applying the 11 indicia in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156, she held that the applicant was employed by the respondent to carry out plastering work at the Flat.
C. Application to adduce new evidence
14. The new evidence consists of an unsigned witness statement of Ms Lin (“Ms Lin’s Statement”) together with four annexes (“the Annexes”).
15. In gist, Ms Lin’s Statement states that: (i) various decoration works were carried out to the Flat from May or June to October 2017 by different contractors; (ii) the respondent and his brother dealt with the plastering work based on a quotation provided by the latter; (iii) she subcontracted the plumbing and electrical work to the applicant based on his quotation; (iv) the respondent knew about the applicant’s quotation because he was present when the applicant gave it to her; (v) the applicant brought his tools to the Flat and had also purchased steel pipes and electrical wires; (vi) by the time of the Accident, the applicant only finished 70% of the plumbing work and 30% of the work on electrical switches and wiring; (vii) after the Accident, Wah Nam Air-conditioning Service Company (“Wah Nam”) was engaged to carry out the unfinished work; (viii) on the day of the Accident, the respondent went to the Flat to clear the rubbish so as to facilitate the remaining plastering work whereas the applicant carried out plumbing and electrical work in the kitchen on his own accord; (ix) the applicant’s conduct at the time of the Accident as described in [19] and [20] of his witness statement was unreasonable and negligent; (x) she happened to go to the Flat after the Accident and from her observation, the applicant’s injury was not serious; and (xi) several aspects of the applicant’s evidence in his witness statement and at the trial are untrue, including his evidence that he was employed by the respondent.
16. As to the Annexes, they comprise: (1) Annex 1, which consists of three pages of quotations, one of which was dated 2 June 2017 with the other two undated but with a notation that the work was completed on 16 September 2017 and 10 September 2017, an invoice of Wah Nam dated “10-07-2017”, and a summary of works and costs compiled by Ms Lin; (2) Annex 2, which is a draft plan showing the location for the installation of the electrical switches; (3) two photographs showing tools and clothing that the applicant brought to the Flat; and (4) two photographs showing the location of the electrical work carried out by Wah Nam.
17. Order 50 rule 10(2) of the Rules of the High Court provides that new evidence shall not be admitted on appeal except on special grounds. It is well established that a party seeking to adduce new evidence on appeal must satisfy all the three conditions laid down in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489, namely first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, 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: and third, 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.
18. Further, even if an application has satisfied all the conditions in Ladd v Marshall, the court may in the exercise of its discretion dismiss it if it is a last-minute application made very close to the appeal hearing: Law Kwok Fai Paul v Wellmei (HK) Plastics & Electronics Industrial Ltd CACV 45 of 2014, 31 October 2014, at [18];PW v PPTW CACV 224/2013, 16 December 2014 at [10] - [12]; see also Practice Direction 4.1 at [37].
19. For the reasons set out below, we consider the application to admit new evidence has no merits and should be refused.
20. Firstly, looking at the litigation history of this appeal, there can be no doubt that this application was made very late, after the appeal had been set down and only three months to the new hearing date. There is no satisfactory explanation for the late application. The fact that the respondent was previously acting in person and only belatedly sought legal advice is not a good reason.
21. Secondly, the respondent cannot get past the first condition of Ladd v Marshall. Although Ms Lin’s Statement was prepared after the trial, its contents relate to matters that existed long before the trial. While it is unclear when the pictures in the Annexes were taken, what they depict as well as the other documents must have existed before the trial. The respondent’s explanations for not calling Ms Lin and/or adducing the Annexes at the trial are threefold:
(1) Misapprehension: It is said that the applicant (both when he was represented and acting in person) deliberately directed the dispute and proceedings solely against the respondent, which had “skewed the focus and direction of the respondent’s defence and case preparation to the parties’ historical (personal) relationship and their modus operandi”. The respondent had misunderstood the central issue and was distracted in his focus and investigation.
(2) Ms Lin’s pregnancy and relocation and Covid-19: Ms Lin gave birth to her two sons in Hong Kong in September 2019 and August 2022. In the intervening period, as a result of the outbreak of Covid-19, she was living mostly in Wuhan due to initially the closure of Wuhan and subsequently the public health situation in Hong Kong. During the short intervals she was in Hong Kong, she was busy dealing with her personal matters and looking after her young family.
(3) Inaccessibility of the documentary evidence: Some of the documents were kept by Ms Lin’s husband in Wuhan. The respondent did not know of their existence until he had a conversation with Ms Lin and her husband sometime after June 2022.
22. In our view, none of these matters, whether taken individually or cumulatively, shows that the new evidence could not have been obtained with reasonable diligence for use at the trial. At the most, they are the respondent’s reasons for not obtaining a witness statement from Ms Lin, calling her as his witness and/or adducing the documents at the trial. What they do not show is what efforts he had made to make these evidence available for trial, and that even with reasonable efforts they could not have been obtained. In this regard, it is pertinent that Ms Lin is the respondent’s daughter, the owner of the Flat, and on the respondent’s case, the very person who organized the various decoration works for the Flat and subcontracted the plumbing and electrical work to the applicant. Further, Ms Lin was at the Flat shortly after the Accident, had spoken to the applicant, observed his injury and accompanied him to take a taxi to see the doctor. All of these are admittedly known to the respondent. It must be obvious to him that his daughter is a relevant, and indeed a key, witness.
23. We do not accept that the respondent had misunderstood the focus or the issues of the case. It is also irrelevant that prior to June 2022 he was not aware Ms Lin or her husband had kept the documents relating to the decoration works of the Flat. The Answer filed in November 2019 stated succinctly that the applicant was self-employed, not employed by him, and had subcontracted the plumbing and electrical work of the Flat. This shows that the respondent knew from the outset what was the core issue in the case. It was open to him to ask his daughter whether there was any document or other evidence that could have supported his case. Insofar as the respondent seeks to attribute the blame to the applicant[1], this is not borne out by the evidence.
24. We also do not accept it is impractical to expect the respondent to take steps to procure Ms Lin as his witness and/or to seek supporting documentary evidence from her. The applicant’s Application was issued in May 2019 and the respondent filed his Answer on 20 November 2019. Mr Lin gave birth to her eldest son in September 2019 and it was in December 2019 that she left for Wuhan. There was ample opportunity for the respondent to enlist her assistance, including asking her to be his witness or to provide supporting documents. We also do not understand the respondent to be saying that he had no means of contacting Ms Lin while she was here or in Wuhan.
25. The respondent has simply failed to fulfil the first condition. This together with the fact that it is a very late application are sufficient to warrant a refusal of the application. It is thus unnecessary for us to dwell into the second and third condition. It suffices to say we are inclined to agree with the applicant that the new evidence would not have any important influence over the outcome of the case, having regard to the high hurdle that the respondent faces in seeking to overturn the Judge’s assessment of the parties’ credibility and findings on the evidence, the documents (except the summary prepared by Ms Lin) are clearly hearsay and the applicant is well entitled to dispute their authenticity and weight.
26. We would further point out that there are no special or exceptional circumstances in this case that justify the exercise of our residual discretion to admit the proposed evidence in the appeal. The present case is far removed from the considerations discussed in A Solicitor v Law Society of Hong Kong [2021] 5 HKLRD 445 at [19] to [24].
D. Application to amend
27. The amendment seeks to replace the existing grounds of appeal with seven new grounds of appeal[2]. As accepted by the respondent[3], the proposed Ground 8 falls away with our refusal of the application to admit new evidence.
28. As to the proposed Grounds 2 to 7, we are of the view that for the reasons set out below they are not reasonably arguable.
D.1 Proposed Grounds 2 and 3
29. Grounds 2 and 3 concern what Mr Sam terms as the parties’ previous working relationship (過往之工作關係). Ground 2 complains that despite repeatedly telling the parties that their previous working relationship was not relevant, the Judge accepted and relied on the applicant’s evidence about their previous working relationship. It is also said that the parties’ previous working relationship and their money dispute(s) are directly relevant to, and determinative of, the Employment Issue, and that the Judge ought to have conducted a thorough investigation into these matters.
30. In support of this ground, the respondent relied on four passages in the transcript[4], three of which took place during the parties’ opening submissions and the fourth was when the Judge explained to the parties how to prepare their closing submissions. Reading the passages in context, the Judge was reminding the parties, when they did their opening or closing submissions, to focus on the work, its nature and their relationship on the day of the Accident, and not to digress into their unhappy past and their cross allegations of outstanding payment/debts which had no or no direct relevance to the issue in dispute. The Judge also explained that even if the applicant had subcontracted work to the respondent in the past and vice versa, that would only provide the background and reflect their past dealings.
31. In our view, the Judge was entitled to, and was entirely proper, in asking the parties to focus their opening and closing submissions on matters directly relevant to the issue to be tried. We also do not accept what the Judge said to the parties was wrong. Their past dealings, such as they had subcontracted work from each other and/or had unsettled payments/debts, is not determinative of the Employment Issue. Further, right at the beginning of the trial[5], the Judge had identified in detail to the parties the issues, and in relation to the Employment Issue, the factors that the court would take into account and the relevant facts in dispute. The factors and facts in dispute identified by the Judge were in line with the principles established in Poon Chau Nam and also consistent with [43] of the judgment which set out the applicant’s evidence on the working arrangement and relationship between the parties as accepted by the Judge.
32. The complaint that the Judge failed to conduct an investigation at the trial is misplaced. Although both parties were unrepresented, the trial remained an adversarial process. In any event, the respondent had in his two witness statements[6], which was adopted as his evidence-in-chief, dealt with his past dealings with the applicant in length.
33. In short, Ground 2 has no merits.
34. Turning to Ground 3, it complains that the Judge failed to properly consider her finding that in the past the parties had referred work to each other[7]. It is said that this is consistent with the traditional structure and practice of the decorations industry (裝修行業的傳統結構及慣例) and supports the respondent’s case while contradicts the applicant’s case.
35. However, no evidence was adduced at the trial over the traditional structure or practice of the decorations industry. Further, as stated above, the parties’ past dealings are only one of the matters to be considered, but is not determinative of their relationship at the time of the Accident. Ground 3 is unarguable.
D2. Grounds 4 to 6
36. Grounds 4 to 6 turn on the respondent’s evidence about the decoration work of the flat next to the Flat, which was owned by a Mr Lau. Ground 4 says that the Judge erred in finding the respondent had subcontracted from Mr Lau all the decoration work of his flat. Ground 5 complains that the Judge erred in taking into account this finding, which is irrelevant to the Employment Issue. Ground 6 says it was illogical for the Judge to rely on this to find that the respondent would subcontract several jobs at the same time and arrange the applicant to carry out the work when there was no evidence of the applicant had worked at Mr Lau’s flat.
37. These grounds are based on a misreading of the judgment and have no merits. At [24] of the judgment, the Judge set out the respondent’s evidence under cross-examination that at the time of the Accident, he was engaged by Mr Lau to decorate his flat[8], and the work and payment were negotiated and settled between Ms Lin and Mr Lau. When analyzing the parties’ evidence, the Judge noted at [37] that it was not disputed that at the time of the Accident the respondent and his daughter had subcontracted the decoration work of Mr Lau’s flat[9]. Neither of these paragraphs states that the respondent had subcontracted all the decoration work of Mr Lau’s flat.
38. Further, the Judge did not rely on this part of the respondent’s evidence to find that the respondent would subcontract several jobs at the same time and arrange the applicant to carry out the work. As is clear from [43(1)] of the judgment, it is on the applicant’s evidence as accepted by her that the Judge found that the respondent would subcontract decoration work of several premises at the same time and instruct the applicant to go to work at the premises specified by him.
D3. Ground 7
39. This ground complains that the Judge was wrong to find the applicant an honest witness and to accept his evidence, having regard to: (1) the applicant’s erroneous or unsatisfactory evidence over the number of years he had been employed by the respondent as plastering casual worker and the number of days he worked in a month; and (2) the Judge’s erroneous finding that the respondent had accused the applicant of hanging a spell at the kitchen ceiling.
40. In respect of (1), the applicant stated in his witness statement dated 10 November 2020 that he had been employed by the respondent as a plastering casual worker for ten odd years[10]. He, however, agreed in cross-examination that by the time of the Accident the respondent had only come to Hong Kong for seven years. When being asked about the apparent inconsistency with his witness statement, the applicant said he meant it had been ten odd years by the time of his witness statement.
41. As to the number of days he worked in a month, the applicant stated in his witness statement that before the Accident he worked on average 26 days a month[11]. In cross-examination, when he was referred to this part of his witness statement, the applicant volunteered that it should be 20 to 26 days. The respondent then produced his immigration movement record for 1 July 2016 to 8 December 2020 and put to him that in the year prior to the Accident on average he only stayed in Hong Kong 17.5 days a month. In response, the applicant said that for that particular year, he had to go to visit his mother in the Mainland as she was hospitalized for a surgery and had a stroke.
42. The applicant’s evidence over these two aspects may not be entirely satisfactory. Also, the Judge was mistaken when she said that the applicant had stated in chief that his average number of working days was 20 days a month[12]. However, these are only two of the many aspects of the applicant’s evidence. In assessing his credibility and evidence, the Judge was of the view that the applicant’s case remained consistent throughout from the time he reported to the Labour Department until his evidence in court, and that despite some details being unclear, the applicant’s overall evidence on his relationship with the respondent was clear and credible. It is a considered view that the Judge had reached in the light of the entirety of the applicant’s evidence and documents and his demeanour[13]. It is trite that an appellant who seeks to challenge a trial judge’s assessment of credibility and finding of fact faces a high hurdle in that he has to demonstrate that judge's decision at first instance was plainly wrong. We are not satisfied that the respondent has met the high threshold.
43. In respect of (2), the respondent is effectively challenging the Judge’s adverse finding on his credibility. In his cross examination[14], the respondent claimed that at the time of the Accident, the applicant heard him returning to the Flat, became nervous and fell. He also said that the applicant went onto the platform without him knowing, and that he had learned occult magic and intended to harm him[15]. The respondent further said that he had no idea whether at the kitchen ceiling there was, and what sort of, a spell; and he would be removing it to find out what occult magic it was[16]. At [30] of the judgment, the Judge stated that the respondent testified that he did not know why the applicant was working near the ceiling of the kitchen, and he suspected that the applicant was putting a spell on the ceiling so as to cause him harm. Plainly, the Judge had not misunderstood the respondent’s evidence or taken it out of context. The Judge was also entitled to hold at [40] that these were absurd and wild claims as there was no reason why the applicant would want to harm the respondent.
44. Ground 7 has no merits.
45. As the proposed new grounds of appeal are not reasonably arguable, we had refused the application to amend the notice of appeal.
E. Disposition
46. For the above reasons, we ordered that the respondent’s summons be dismissed.
47. Applying the normal rule of costs follow the event, we had also ordered the respondent to pay the applicant the costs of the summons. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.
(Carlye Chu)
Vice President | (Anderson Chow)
Justice of Appeal |
Ms Lorinda Lau instructed by Lau & Chan for the applicant
Mr Perlman Sam instructed by Francis Kong & Co for the respondent
[1] The respondent’s affirmation and supplemental affirmation at [13] and [3] respectively, and the respondent’s written submission at [16(1)].
[2] Ground 1 is a general ground.
[3] The respondent’s written submission, at [42].
[4] Transcript, at pp. 5E-G, 6I, 7D-E and 53R-T.
[5] Transcript, at pp.2O-3N.
[6] The second paragraph of the respondent’s first witness statement dated 10 June 2020 and [4] to [7] of the respondent’s second witness statement dated 10 January 2021.
[7] Judgment, at [36].
[8] “聘請答辯人去裝修劉先生的單位”
[9] “承接了鄰居劉先生單位的裝修工程”
[10] At [14].
[11] At [15].
[12] Judgment, at [40].
[13] Judgment, at [42].
[14] Transcript, at pp.52T – 53D.
[15]“你學咗咩邪術，... 你想害我”
[16]“我而家都唔清楚廚房上面有冇咩嘢符或者咩嘢咩 ... 整咩嘢手腳喺度。…我要去拆開，睇睇你呢個人，你學到咩嘢邪術，要乜嘢--識得整蠱人咩。”