CHAN MING KIT v. LUK KWOK KEUNG

DCPI 1964/2022

[2026] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1964 OF 2022

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DECISION

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1.  I handed down my Judgment for this case on 30 June 2025 (see [2025] HKDC 1047), by which I found in favour of the plaintiff and awarded him HK$70,500.00 in damages. I also made the following costs order nisi:-

1.1.  The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel, subject to the wasted costs order in paragraphs 1.3 and 1.4 below[1].

1.2.  The defendant shall pay the plaintiff’s costs on the issue of quantum in the main action at a scale commensurate to those awarded by the Small Claims Tribunal, subject to the wasted costs order in paragraphs 1.3 and 1.4 below, and summarily assessed at HK$5,000.00[2].

1.3.  The legal representatives do bear their own costs with respect to the preparation of the certificate of time estimate, and the application to set down[3].

1.4.  The costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters[4].

2.  I adopt the definitions used in the Judgment unless otherwise stated.

3.  With extensions of time granted by the court, the defendant issued a summons on 19 August 2025 (“the Appeal Summons”) for leave to appeal against the Judgment, on the grounds contained in the draft notice of appeal annexed thereto.

4.  Also with extensions of time granted by the court, the defendant issued another summons on 29 September 2025 (“the Costs Summons”) to vary the costs order nisi given in the Judgment. I set out below in verbatim the order sought in the Costs Summons:-

“The costs nisi as stated in paragraphs 77 to 80 (except paragraph 79) of the Judgement be varied as following:

(1) In paragraph 77 of the Judgement, namely: The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel. This costs nisi is subject to the appeal where leave to appeal is being applied for. Even if the appeal is not allowed, which is denied, there is no order for separate trial so that the summarily assessment on the issue of quantum (should be the action) at HK$5,000.00 on the last sentence of paragraph 78 of the Judgement shall be inclusive of the costs on (i) issue of liability of the main action; and (ii) the counterclaim, so that the costs on (i) issue of liability for the main action and; (ii) the counterclaim in this case is nil.

(2) There will not be any application for costs variation on the costs as stated in paragraph 79 of the Judgement as costs on the preparation of the certificate of time estimate and the application to set down is minimal, subject to the intention of the plaintiff’s solicitors.

(3) The costs as stated in paragraph 80 of the Judgement, namely: the costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters be varied ‘to be paid by the plaintiff’s solicitors personally’ and

(4) Costs of this application be to the Defendant’s solicitors.”

5.  Again, with extensions of time granted by the court, the defendant filed 4 sets of written submissions respectively on 29 September, 31 October, 25 November and 2 December 2025. The plaintiff filed his written submissions in response to the 2 Summonses on 13 November 2025.

6.  I put on record that various extensions of time were necessitated through no fault of any party or their legal representatives. The fact that multiple extensions were required does not feature in my consideration of the merits of the defendant’s applications as contained in the 2 Summonses.

THE APPEAL SUMMONS

7.  I shall first consider the defendant’s application for leave to appeal against the Judgment.

8.  It is trite that the defendant shall be granted leave to appeal against the Judgment if his intended appeal is reasonably arguable; or there are some reasons to grant leave to appeal in the interest of justice. Reasonable prospect in an intended appeal means the merits are more than fanciful, but there is no need to show that it will probably succeed: SMSE v KL [2009]4 HKLRD 125.

9.  I shall go through the grounds stated in the draft notice of appeal in the sequence they are set out therein.

Paragraphs a to c: error in law

10.  The defendant submits that I erred in law when I set out in paragraph 5 of the Judgment that the present case was no different from any other run of the mill traffic case, in that what I said was contrary to the reasonableness test that I should adopt in evaluating his liability.

11.  These submissions must be rejected on the obvious basis that the defendant misinterpreted paragraph 5 of the Judgment. In an ordinary negligence claim arising out of a traffic accident, the court invariably applies the reasonableness test to consider the liability of the defendant driver. The Judgment is no different; I find that the defendant cannot point to any part of the Judgment that suggests otherwise. I agree with Ms Tina Mok, counsel for the plaintiff, that the defendant has taken that particular sentence of paragraph 5 of the Judgment out of context.

12.  The defendant further submits that I erred in paragraph 19 of the Judgment, in that I should have found the plaintiff liable as TW8898 driven by him failed to give way to VB4521 driven by the defendant, when VB4521 intended to leave the Interchange at the Tsing King Road exit.

13.  I do not find this reasonably arguable. I have already dealt with the defendant’s argument in paragraph 16 of the Judgment. What was important was my finding that VB4521 came up from behind at great speed[5], such that when it sought to cut into the left 1^st lane in front of TW8898, the defendant left too little time for the plaintiff to be aware of the presence and intention of VB4521 to exit the Interchange. It has been repeatedly stated by the Court of Appeal that a simple rehash of arguments already deployed at the original hearing, without showing how the decision appealed against erred, is not in itself sufficient for leave to appeal to be granted: see e.g. S v C[2021] HKCA 1372 at §11. The defendant does not actually show how I erred in my analysis.

Paragraph d: misapplication of judicial notice

14.  Under this paragraph, I am said to have failed to take judicial notice that private vehicles in Hong Kong, like TW8898 driven by the plaintiff, are equipped with side mirrors to allow drivers to take notice of the traffic condition around the vehicle. It is argued that I did not consider the plaintiff’s failure to use the side mirrors to identify the presence of VB4521.

15.  I do not agree that this argument only pertains to an alleged failure to take judicial notice. In substance, it is an attack on the finding of fact made in the Judgment that the plaintiff did not see nor realize that VB4521 would like to exit the Interchange ahead of TW8898 until split seconds before VB4521 cut into the left 1^st lane.

16.  As Ms Mok submits, with respect to a challenge against factual findings made by a trial judge, the appellant has to overcome a very high threshold in order to succeed. The Court of Appeal will only intervene if the trial judge’s factual finding is plainly wrong, bearing in mind that it does not enjoy the advantage available to the trial judge who received the evidence first-hand: Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336.

17.  In my decision, the defendant has not shown he has any reasonable chance to meet the requisite threshold to attack my factual finding. I came to my findings after considering the evidence given by the witnesses, and after comparing them with what could be observed from the camera footages made available at trial. The defendant has not pointed to any part of the evidence I allegedly considered in a wrong way. I also think Ms Mok’s submissions persuasive, in that the defendant’s negligence lied in cutting in front of TW8898 in the circumstances that the plaintiff did not have sufficient time to notice the presence of VB4521 and react accordingly. What the plaintiff might be able or not be able to observe from the side mirrors of VB4521 prior to the Accident was quite beside the point, even if (at all) the plaintiff was exhaustively cross examined as to the circumstances pertaining to that at trial.

18.  I do not think the defendant should be granted leave to appeal based on this ground.

Paragraph e: factual errors

19.  The defendant repeats his submissions that I erred in my factual findings that the plaintiff had insufficient time to react to VB4521 cutting in front of TW8898.

20.  Based on my reasoning above, there is no substance under this ground.

Paragraph f: irrelevant consideration of indicators

21.  The defendant claims that I erred in dismissing the fact that VB4521 turned on its left indicator as irrelevant: see paragraph 20 of the Judgment.

22.  Again, this piece of evidence goes to my factual finding that the plaintiff did not have proper time to react to VB4521 cutting in front of him into the left 1^st lane just before the Accident. The defendant has not explained how I was wrong in concluding that this piece of evidence was irrelevant. He just repeated his position at trial that, given he turned on the left indicator light, the plaintiff must have been aware of his intention to exit the Interchange in front of VB4521. I rejected this at trial, and he has not shown any basis that the Court of Appeal may intervene in this factual analysis.

23.  I do not think this ground is reasonably arguable.

Paragraph g: improper lane usage

24.  The defendant argues that TW8898 staying on the left 1^st lane within the Interchange without taking the first available exit amounted to a breach of the Road Users’ Code. This shows that the plaintiff was negligent and he caused the Accident.

25.  The plaintiff replies by submitting that no specific provision of the Road Users’ Code was cited by the defendant to support his proposition. Further, the evidence did not show that the left 1^st lane could only be used for exiting the Interchange.

26.  I agree with the plaintiff’s submissions. The defendant mentioned the part of the Road Users’ Code reminding drivers in a roundabout to look out for and show consideration of other vehicles crossing in front to leave by the next exit. This clearly implies that a vehicle may remain on an outer lane of a roundabout despite having no intention to take the next available exit; the defendant’s proposition is simply contradicted by the Code he seeks reliance on.

27.  The defendant has no reasonable prospect of success under this ground.

Paragraph h: overreliance on camera footage

28.  The defendant submits that I placed undue weight on the camera footages, ignoring the fact that reasonable drivers rely primarily on mirrors and direct observation, which provide a wider field of view than that of cameras.

29.  I agree with Ms Mok that I was entitled to assign suitable weight to what can be observed from the camera footages, bearing in mind that they provide an objective and contemporaneous record of the circumstances leading up to the Accident. Based on what I have said in the Judgment, I disagree with the defendant’s submissions that I solely relied on the camera footages to come to my factual findings.

30.  If all the defendant is saying is that the view of vision of a driver is wider than what the camera footages captured, it must be correct. But this alone does not assist the defendant – what flows from what the plaintiff actually saw or ought to have observed prior to the Accident is key. Based on my views in the previous paragraphs, the defendant has no reasonable prospect to successfully challenge my factual findings on appeal.

31.  I refuse to grant leave on this ground.

Paragraph i: unreasonable assessment of evidence

32.  The defendant argues that the objective evidence at trial was consistent with the defendant’s case that VB4521 was wholly ahead of the plaintiff’s vehicle. I understand this to mean, as the defendant sought to argue at trial, that before VB4521 cut into the left 1^st lane in front of TW8898, it was wholly ahead of TW8898 for some time, but not just for a split second before it started cutting into the left 1^st lane.

33.  In my decision, it is futile for the defendant to argue that, for a split second before the Accident, VB4521 was wholly ahead of TW8898. As a matter of physics, this is blindingly obvious; but this missed the correct issue, viz whether the defendant did leave sufficient time for the plaintiff to react to VG4521 cutting in front of TW8898 in close proximity.

34.  Ms Mok observes that, whilst this ground is included in the draft notice of appeal, the defendant has made no submissions to justify the reasonable prospect of success of this ground in his written submissions.

35.  I agree with Ms Mok that the defendant’s account is plainly incompatible with what one can observe from the camera footages. The defendant has not pinpointed any specific part(s) of the footages which can be said to be compatible with the defendant’s evidence on the relative positions of VB4521 and TW8898 inside the Interchange.

36.  I refuse to grant leave to appeal under this ground.

Paragraph j: errors in quantum assessment

37.  The defendant argues that my award of damages was excessive, and was not supported by the medical evidence.

38.  I find the defendant’s arguments fundamentally inadequate to show that he has any reasonable prospect of success in challenging my assessment on appeal. As Ms Mok points out, the defendant has stated in paragraph 17 of his 28 October 2025 submissions that I correctly arrived at HK$70,500.00 as the damages the plaintiff should be entitled to. Further, the defendant has not pointed out the specific ways in which I failed to proper scrutinize the medical evidence. It is trite that the leave to appeal ought not be granted on the basis of some broad-brush allegations of error.

Summary

39.  I am not persuaded that I erred in my Judgment. It does not appear to me that there is any reason in the interest of justice to grant leave to the defendant to appeal against my Judgment.

THE COSTS SUMMONS

40.  The defendant raises 2 arguments:-

40.1.  Since there was no order for a split trial, the summarily assessed costs of HK$5,000.00 should also cover the costs relating to liability.

40.2.  The plaintiff’s solicitors were the ones at fault with respect to the preparation and service of the trial bundle.

41.  I find no substance in the defendant’s submissions.

42.  First, it must be within the court’s unfettered discretion on costs to make a costs order on an issue-based approach, notwithstanding the absence of any order for split trial. The defendant’s logic is not understood; he has not pointed to any authority suggesting that the court cannot adopt such an approach to deal with costs.

43.  I have set out in the Judgment the reasons why I thought it was proper to order costs on an issue-based approach in the present case. The defendant has not attempted to suggest how I erred in my reasoning and assessment.

44.  Secondly, in the context of considering whether the costs order nisi should be varied, it is irrelevant that the defendant has sought to appeal against the Judgment. Again, the defendant’s logic is not understood.

45.  Thirdly, paragraphs 57 to 75 of the Judgment contained an extensive review of the correspondence and the arguments of the parties in relation to the agreement of the trial bundle index, the preparation of the trial bundle, and the service of the same. The defendant and his solicitors seek to rely on the Order of Master setting the present case down for a 4-day trial on the basis of the agreed trial bundle index to say that no fault should be laid on their doorsteps with regard to the trial bundle.

46.  I stand by the observations and conclusions I made in those paragraphs. I have explained in the Judgment why I found the defendant’s solicitors at fault despite the trial bundle being an agreed bundle, and the Master not taking issue with regard to the parties’ estimate of 4 days for the trial. I agree with Ms Mok that the defendant is now repeating the submissions he already made at trial. I see no basis to revisit the exercise of discretion.

47.  Fourthly, it is submitted that there was no time during the trial to adequately review the parties’ correspondence and make submissions as to the appropriate costs order. It was mentioned that the trial commenced on Christmas eve, so everyone should be on holiday mood; the defendant’s solicitors had to concentrate on the merits of the case during the trial, and thus there was not enough time to review the correspondence[6]. Therefore, it appears to be so suggested, that I did not give sufficient opportunity to the defendant and/or his solicitors to make representations before I made the wasted costs order.

48.  It is my decision that even in the written submissions filed by the defendant in support of the Costs Summons, the defendant’s solicitors are simply repeating the submissions already made at trial. I do not agree with those submissions in any event as they do not stand up to the course of correspondence I recounted in the Judgment. I hasten to add that, after completing the evidence on the first day of trial (24 December 2024), oral closing submissions took place on 31 December 2024. The 2 days in between (29 & 30 December 2024) originally reserved for the trial were vacated and parties were allowed to prepare written closing submissions before they returned for oral submissions. In my decision, it is preposterous to suggest that there was not enough time to review the parties’ correspondence for the purpose of making submissions on wasted costs as per my invitation at the commencement of the trial.

CONCLUSION

49.  I dismiss both the Appeal Summons and the Costs Summons with costs to the plaintiff, to be taxed if not agreed, together with a certificate for counsel.

50.  The costs order nisi in the Judgment is now made absolute.

51.  I thank Ms Mok for her assistance.

Ms Tina Mok, instructed by Joseph M. K. Chan, Solicitors, for the plaintiff

Raymond Cheung & Chan, for the defendant

DCPI 1964/2022

[2025] HKDC 1047

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1964 OF 2022

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JUDGMENT

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1.  This case has been badly handled by the parties (and no less, their respective legal representatives) on multiple levels. I can only do justice to them by setting out all the problems, so that the court will hopefully see no more of that in future cases.

2.  On 15 February 2021 at 3:10 pm, the plaintiff was driving a private vehicle bearing the registration TW8898 (“TW8898”) along the left 1^st lane of Tam Kon Shan Interchange, which is essentially a roundabout. When TW8898 approached the exit to Tsing King Road, it collided with a private vehicle bearing the registration VB4521 (“VB4521”), which was driven by the defendant. I shall refer to this collision as “the Accident”.

3.  The plaintiff claims that the Accident was caused by the defendant’s negligent driving, and claims HK$272,818.89 as damages for his bodily injuries, and for the damage TW8898 sustained.

4.  Because of the Accident, the defendant was prosecuted for careless driving. He was convicted upon his own plea in WKS 4800/2021 on 7 September 2021. He was fined HK$1,000.00. Despite this conviction, the defendant says that he ought not be found liable at all; the plaintiff should be held wholly liable in causing the Accident instead. He launches a counterclaim for the cost of repair for VB4521, and travelling expenses for the period during which he cannot use his vehicle.

5.  The present case contains no special feature that separates it from the run-of-the-mill traffic cases that frequent the Running List. Surprisingly, the trial was set down in the Fixture List with 4 days reserved[1]. The length of the trial was revised down from the 8 days that parties estimated in aggregate in their certificates for time estimate, after the Master dealing with the setting down application raised requisitions on the reasonableness of their respective estimates. In fact, the parties finished examination of the 3 witnesses within the 1^st day of trial. The 2^nd and 3^rd days originally reserved were vacated as a result.

6.  And as I thought, after hearing the evidence, that the underlying dispute between the parties was indeed simple and straightforward, the defendant in his written closing[2] disclosed to this court that he put forward a sanctioned payment of HK$20,000.00 on 5 August 2022. Mr Charles K C Chan, counsel for the defendant, appeared to excuse this fault by the fact that, on the first day of trial, I directed parties to address me on costs in relation to 4 specific matters which I shall address below. At any rate, my directions cannot justify the defendant’s error in disclosing the amount of the sanctioned payment prior to judgment being handed down. After I gave time to Mr Chan, he conceded on the defendant’s behalf that the defendant would be liable to the plaintiff for at least HK$20,000.00. It was on that basis that I did not abort the trial and reserved my judgment.

THE ACCIDENT

7.  Tam Kon Shan Interchange is a conventional roundabout with 3 lanes.

8.  It is the plaintiff’s case that:-

8.1.  TW8898 entered the Interchange from the left 1^st lane entrance of Fung Shue Wo Road[3]. He stayed on the left 1^st lane of the Interchange. He maintained a speed of around 40 km/h.

8.2.  When he was approaching the exit to Tsing King Road, he intended to stay on the Interchange. But there was a vehicle (later known to be VB4251) came up from behind on the left 2^nd lane at 50-60 km/h.

8.3.  VB4521 then cut into the left 1^st lane in front of him. He could not stop TW8898 in time. The right front part of TW8898 collided with the left rear door of VB4521.

9.  The defendant says that:-

9.1.  When VB4521 entered the Interchange, it stayed on the left 3^rd lane (ie the innermost lane). It kept the speed of around 30 km/h. TW8898 was travelling side by side on the left 1^st lane.

9.2.  When VB4521 was about to leave the Interchange at the exit to Tsing King Road, TW8898 travelled on the left 1^st lane behind it. As the defendant puts it in §5 of his witness statement dated 28 March 2023, VB4521 “was almost in front of TW8898”.

9.3.  The defendant then put on the left indicator light to exit to Tsing King Road. VB4521 was then “almost ahead of TW8898”.

9.4.  TW8898 did not decelerate. Its right front mud flag collided with the left rear door of VB4521.

10.  The defendant was interviewed by the police under caution on 1 March 2021. He stated in his police witness statement that:-

10.1.  He entered the Interchange from Fung Shue Wo Road. When he was about to exit Tsing King Road, he was in the middle lane, ie left 2^nd lane.

10.2.  After both TW8898 and VB4521 went into the Interchange, VB4521 was ahead of TW8898 by half a vehicle length.

10.3.  He kept his indicator light on. He observed from the left side mirror that TW8898 was around a vehicle length behind him. But when he thought there would be sufficient space ahead of TW8898 to allow VB4521 to exit the Interchange at Tsing King Road, the Accident happened.

11.  The plaintiff provided 2 video footages to the police: 1 recorded by the front camera, and the other by the rear camera on TW8898. These footages are also made available as evidence in the present case, and cross examination respectively against the plaintiff and the defendant on these footages is led at trial. There is no dispute that these footages provide the best evidence to evaluate the parties’ respective cases.

12.  The front camera footage is 34 seconds long. It starts when TW8898 was still on the left 1^st lane of Fung Shue Wo Road. When TW8898 entered the Interchange, it stayed on the left 1^st lane. The footage manages to show the traffic of the left 1^st and 2^nd lanes. It is only by the last 2 seconds of the footage that one can see VB4521 appearing on the footage; by that time, the Accident was about to occur.

13.  The rear camera footage is also 34 seconds long. After some cross examination, the defendant accepts that the silver vehicle travelling on the left 3^rd lane of Fung Shue Wo Road, and staying on the left 3^rd lane of the Interchange initially was VB4521. The footage showed that TW8898 entered into the Interchange prior to VB4521. VB4521 can be observed from the footage from the 20^th second when it first entered the Interchange, to the 30^th second when it disappeared from the left. The collision between TW8898 and VB4521 can be inferred from the shaking of the footage at the 34^th second, just before the footage ended.

14.  I have no hesitation to find that the plaintiff is truthful and reliable when he recounts how the Accident happened; I find the defendant lying in his police witness statement and in his evidence in the present case. My reasons are as follows:-

14.1.  The footages are in complete contradiction of the defendant’s evidence with respect to the relative positions of TW8898 and VB4521 when they entered the Interchange, and when they were approaching the exit to Tsing King Road.

14.2.  The defendant must be wrong to say that, because of the front camera was facing directly ahead, VB4521 was not captured by the front camera until just before the Accident. If there were any truth in the defendant’s evidence, VB4521 should be observable much earlier in the front camera footage, and no longer observable much earlier in the rear camera footage. But until the moment just before VB4251 attempted to cut into the left 1^st lane from the left 2^nd lane, VB4521 was at no time seen ahead of TW8898 by half to a whole vehicle length.

14.3.  VB4521 must have a speed at least the same as, if not higher than, TW8898 after it entered the Interchange. Otherwise, its distance behind TW8898 could not have been reducing as the rear camera footage goes on. And for it to overtake TW8898, VB4521 must have picked up speed when it was approaching the exit to Tsing King Road.

15.  I find as facts that VB4251 came up from behind TW8898, first on the left 3^rd lane of the Interchange, then after having cut into the left 2^nd lane, it proceeded to cut in front of TW8898 by picking up speed. But there was insufficient time for the plaintiff to react, and thus the Accident happened. What the defendant says as to how the Accident happened may describe, at best, what actually happened for the split second before the collision between the 2 vehicles occurred. His evidence misrepresents the Accident to the court as if what he describes lasted for the whole, or a substantial period of time when the 2 vehicles were inside the Interchange.

16.  It is trite that, because of his criminal conviction, it is up to the defendant to put forward evidence to show that he was not negligent in the Accident.

17.  Since I have rejected the defendant’s case, he cannot argue that he was not negligent in causing the Accident based on that version of facts.

18.  In my judgment, the camera footages incontrovertibly show that the defendant was negligent in causing the Accident. Just as the brief facts supporting the defendant’s careless driving conviction stated in the last paragraph, he failed to observe the traffic condition on his left side before he decided to exit the Interchange at Tsing King Road.

19.  I do not accept the defendant’s argument that the plaintiff was the sole tortfeasor causing the Accident, on the basis that the Road User’s Code says a driver must look out for and show consideration to other vehicles crossing in front of him/her in a roundabout, especially those intending to leave by the next exit. Such a recommendation must have premised on the assumption that there is a reasonable basis, and thus sufficient time, for the driver to observe that a vehicle in front of him/her would like to cut into his/her lane in order to leave the roundabout. In my judgment, the defendant, when he decided to cut in front of TW8898 to leave the Interchange, simply left no time to the plaintiff to notice his intention and react accordingly.

20.  I find it irrelevant that the defendant turned the left indicator on. Since VB4521 was behind TW8898 most of the time in the Interchange, it was not reasonable to expect the plaintiff to realize that VB4521’s intention was to cut in front of TW8898. I am not told that VB4521 was in any way prevented from exiting the Interchange behind TW8898. I find it reasonable for the plaintiff to only realize VB4521 actually wanted to cut into the left 1^st lane in front of TW889 8, and to take any avoidance action since then.

21.  Based on the facts I found above, I dismiss the defendant’s argument that the plaintiff ought to be found contributorily negligent. Given the abruptness of the defendant’s decision to cut into the left 1^st lane in front of TW8898, I do not think the plaintiff can be faulted for not being able to avoid any collision.

QUANTUM

22.  After the Accident, the plaintiff was brought to the Accident & Emergency Department of Princess Margaret Hospital. He complained of neck pain. The attending doctor noted that there was reduction in the range of neck rotation to the right. Examination of the plaintiff’s right arm did not reveal any problem. The plaintiff was discharged home with analgesics, and was given sick leave for 9 days.

23.  The plaintiff then sought treatment from Dr Chan Tun Kut, an orthopaedic specialist in private practice, on 23 February 2021. He told Dr Chan that there was neck pain, right hand numbness, and anterior shoulder and chest wall pain. He reported tenderness over his right levator scapula and his right scapular region. He could only rotate his head to the right and bend his neck to the right side for half the normal range. Dr Chan arranged him to see a physiotherapist and prescribed him with analgesics.

24.  Dr Chan saw the plaintiff 4 more times up to 21 April 2021. His neck pain reduced but did not completely resolve. He could rotate his head to the right more, but not to the fullest extent. Dr Chan certified sick leave up to 4 May 2021.

25.  There is no expert evidence commenting on the plaintiff’s injuries. I agree and respect the parties’ decision not to call any expert evidence. Since the plaintiff’s claim is modest, and his injuries appear insubstantial, it is certainly not costs proportionate to arrange the plaintiff to be assessed by expert orthopaedic specialist(s).

26.  I see no problem, in the context of the present case, for the plaintiff to rely on the medical reports prepared by his treating doctors to prove his injuries. But it does not mean that the court must accept whatever recorded in those medical reports on face value. It remains the cardinal principle in personal injuries litigation that the court will not assume that a treating doctor has critically assessed the genuineness and reliability of the complaints put forward by his/her patient. Therefore, the court is usually slow to accept, in a wholesale fashion, the complaints recorded by the treating doctors (particularly when the complaints are subjective) as facts.

27.  In a case like the present, it remains incumbent on the plaintiff to ensure proper medical evidence is obtained to show the injuries he sustained as a result of the Accident. For example, there might be tests or investigation done as part of the treatment, which may objectively show the extent of the injuries, eg an X-ray. Or the treating doctors carried out some objective tests to show the genuineness and reliability of the patient’s subjective complaints, eg involuntary muscle spasm upon testing. The results of these tests may provide a basis for the court to evaluate the plaintiff’s own evidence as to the extent of his injuries, and come to a view on what are the injuries genuinely sustained by him in an accident.

28.  For the present case, I am not satisfied that the plaintiff has shown, on a balance of probabilities, that he sustained anything more than trivial injuries during the Accident.

28.1.  I agree with the defendant’s submissions that the impact between the 2 vehicles during the Accident was insubstantial. This can be observed in the camera footages, in that the footages only had minimal shaking at the time of impact. It is difficult to see how the impact energy could bring significant disability to the plaintiff lasting for more than a day or two.

28.2.  If the plaintiff would like to nevertheless persuade the court that there were residual disabilities lasting for months, it is for him to adduce sufficient objective medical evidence to support his claim. With respect, there is none.

28.3.  The plaintiff’s complaints of pain were all subjective. But the treating doctors did not record the result of any objective test to allow me to assess the genuineness of such complaints. I do not accept that Dr Chan’s record on the extent the plaintiff was capable to rotate his head as the result of an objective test, without details given as to how that observation was made. There is also no report put before me as to what the treating physiotherapist observed.

28.4.  Hence, judging from the gravity of the impact, I find that the plaintiff had at most a minor pull in his neck, if at all. I do not find the plaintiff credible when he recounts the extent of his injuries. In my judgment, he has exaggerated the extent of his residual pain arising out of the Accident. Any lingering pain, if there was any at all, should have resolved within a few days.

29.  The plaintiff claims HK$110,000.00 as damages for PSLA. This is grossly excessive in light of my findings above. I find the present case comparable to Wong Shui Ming v Yeung Kam Shing[2018] HKDC 1029 (HH Judge Harold Leong; 23 August 2018); and Yuen Ka Ho v Wong Chin Man & Ors[2022] HKCFI 942 (Deputy Judge To; 6 May 2022). I award HK$6,000.00 as damages for PSLA in the present case.

30.  The plaintiff claims HK$83,388.89 as damages for his pre-trial loss of earnings as a solicitor.

31.  In the Revised Statement of Damages, he pleads that he earned HK$30,000.00 per month from February 2020 to December 2020; and HK$50,000.00 per month since January 2021. He thus adopts HK$31,666.67 as the multiplicand to calculate his pre-trial loss of earnings from 15 February 2021 to 4 May 2021.

32.  Whilst it is his choice to do so, I am perplexed as to why the plaintiff is content with HK$31,666.67 as the multiplicand. Since it is his case that he would have been paid HK$50,000.00 per month during the sick leave period but for the Accident, one would have thought that it would be reflective of the reality, and beneficial to his case, to adopt HK$50,000.00 as the multiplicand[4]. Using the 12-month average of one’s income as the multiplicand is only apt in cases where there is no stability in the injured person’s income, eg a construction worker on casual work at daily rates. Given this is his plea, he must be bound by it.

33.  Under cross examination, the plaintiff accepts that he was already a partner of his law firm when the Accident happened. He shared the profits generated from the firm’s practice. He explains that partners in his law firm also received a basic monthly salary, which was the salary reported for making his monthly MPF contributions. He puts forward a statement made by the MPF trustee of his law firm, which shows that he was only paid HK$25,000.00 for February 2021, and received no salary for March and April 2021.

34.  I am not satisfied that the plaintiff has shown, on a balance of probabilities, that he was usually paid a basic salary every month, but he was not for the 2.5 months as reported to the MPF trustee. My reasons are as follows:-

34.1.  Normally, an MPF trustee relies on the report of an employer to see how much the employer and its employer should contribute to MPF from month to month. The MPF trustee may not necessarily have direct knowledge as to whether the reported income is indeed received by the employee, save perhaps in situations where the MPF trustee is also the employer’s banker for paying salaries.

34.2.  There is no evidence put before me to show that the MPF trustee of the plaintiff’s law firm was also the firm’s banker, so the reported income was paid through the MPF trustee itself, and indeed represented the actual income received by the plaintiff from month to month.

34.3.  There should be no difficulty for the plaintiff to provide documentary evidence showing that he indeed received monthly basic salary except the 2.5 months during which he was under sick leave. But such evidence is absent. In my judgment, there is no good justification for his failure to do so. The inference is that he might actually not have lost such basic salary after all.

34.4.  Coupled with the plaintiff’s own admission that he shared the profits of the firm’s practice, I am not persuaded that he lost any income during sick leave. It is well known that partners in a law firm may delegate work to the solicitors and other staff members they employ. Without evidence showing that the plaintiff’s share of the firm’s profits dropped because of the Accident, I refuse to find that his income was indeed affected by the Accident.

35.  Based on the above, I refuse to award damages for any alleged pre-trial loss of earnings. There is no claim for any loss of MPF contributions.

36.  If I were wrong on my findings about the plaintiff’s basic salary, I would have adopted HK$31,666.67 as the multiplicand, and would adopt 9 days as granted by the A&E doctor who attended the plaintiff as the reasonable sick leave. Therefore, I would have awarded HK$31,666.67 x 9/30 = HK$9,500.00 as damages for the plaintiff’s pre-trial loss of earnings.

37.  The plaintiff claims HK$12,230.00 as medical expenses. The bulk of these expenses was incurred by seeking treatment from Dr Chan.

38.  Since it is my judgment that the plaintiff only suffered trivial injuries, I think it was reasonable for the plaintiff to seek treatment from Dr Chan once, and to receive physiotherapy once. There is no reason why the plaintiff cannot recover expenses incurred in seeking medical treatment in the private sector: Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd [2015] 5 HKC 570 at §64. I award HK$3,000.00 as the rounded up figure based on the receipts.

39.  The plaintiff claims HK$4,200.00 as travelling expenses. I award damages at HK$500.00.

40.  The plaintiff claims HK$2,000.00 as tonic food. I do not accept it is reasonable for the plaintiff to consume tonic food to aid the recovery of just trivial injuries.

41.  The plaintiff claims that he spent HK$61,000.00 as the cost to repair TW8898 and the towing fee. This claim is supported by an invoice dated 15 March 2020 issued by Yau Shing Motor Vehicle Services Limited for HK$60,300.00, together with the corresponding receipt dated 31 March 2021; and a receipt dated 20 February 2021 for HK$700.00 as the towing fee.

42.  Under cross examination, the plaintiff explains that he first asked his friend to drive TW8898 back to his home after the Accident, as he was taken to the hospital by ambulance. His friend told him that something felt off with TW8898, so he opted to have it towed to the repairer on 20 February 2021. The repairer provided a quotation of HK$115,294.00 for fixing TW8898. His motor insurer then engaged loss adjusters to assess the damage sustained by TW8898. By a motor survey report dated 18 March 2021, the loss adjusters assessed the reasonable repair cost to be HK$60,300.00. He and the repairer both accepted the loss adjuster’s assessment.

43.  The plaintiff’s evidence on how TW8898 was repaired at a cost of HK$60,300.00 was commonplace in Hong Kong as to how damaged vehicles are dealt with after a minor traffic accident. His evidence is supported by documentary evidence. I accept his evidence on this part of the claim true and accurate. I also accept that the repair was necessitated by the damage sustained during the Accident.

44.  I award HK$61,000.00 as damages for the repair and towing of TW8898.

45.  In summary, I award the plaintiff damages in the amount of HK$70,500.00.

46.  I accept the plaintiff’s claim that he is entitled to interest for general damages at 2% per annum from the date of the service of the Writ to the date of this judgment; and at half judgment rate on all special damages from the date of the Accident to the date of this judgment. Interest shall accrue on all damages at the judgment rate from the date of this judgment onwards.

THE COUNTERCLAIM

47.  Based on the findings above, the defendant’s counterclaim must be dismissed.

48.  In the event that it becomes necessary, I would have accepted the cost of repairing VB4521 at HK$62,647.00 as reasonable, and HK$5,000.00 as damages for the loss of use of VB4521 for 10 days during repair as reasonable as well. The defendant would also have been entitled to interest, similar to what I have awarded to the plaintiff on the special damages.

COSTS

The certificates for time estimate

49.  When one reads the parties’ respective certificates for time estimate, the problem is obvious.

50.  The plaintiff estimated that examination-in-chief of himself would take 4 hours; the defendant similarly estimated that the examination-in-chief of himself would take 4 hours, and his other witness Ms Luk, 2 hours.

51.  These estimates are obviously at odds with how a trial in a civil matter is conducted nowadays, and is also inconsistent with §2 of the Court Order dated 24 November 2022 that witness statements shall stand as evidence-in-chief unless the court directs otherwise. Any reasonable consideration of the evidence can never give rise to an impression that “topping-up” questions during examination-in-chief would take long.

52.  Next, the defendant estimated that cross examination of the plaintiff would take 12 hours. This is, at any rate, beyond reasonable bounds, since the present case concerns a split-second collision, and injuries which are insubstantial. A similar problem, albeit to a lesser extent, exists for the plaintiff’s estimate of 4 hours for cross examining the defendant, and 2.5 hours for cross examining Ms Luk[5]. Since the plaintiff’s cross examination would be focusing on liability only, it is not understood how the suggested time could be reasonably necessary.

53.  In my judgment, this is a typical case suitable to be included in the Running List with an estimate length of trial of 2 days. I do not think the Master should be blamed for allowing parties to set the present case down for 4 days. The Master was not as familiar with the evidence as the parties; nor did she enjoy the luxury of time to investigate the accuracy of the parties’ estimates. She was perfectly entitled to raise requisitions on estimates that were obviously unreasonable; but upon the parties’ reassurance that 4 days would be necessary, the Master was entitled to assume that parties had exercised their good sense.

54.  It must fall upon the trial judge, either in preparation of the Pre-Trial Review (which none was fixed for the present case) or the trial, to consider the reasonableness of the time estimates put forward by the parties. The trial judge has to penalize parties for grossly erroneous estimates; otherwise the underlying objectives of the Civil Justice Reform will be rendered empty talks.

55.  I am of the view that the legal representatives on both sides fell far short of assisting the court to promote procedural economy in the conduct of proceedings, and to ensure that judicial resources are distributed fairly. Because of the estimate trial length of 4 days, hearings for other cases are naturally delayed to accommodate the present case. The 2 hearing dates vacated simply went wasted.

56.  In my judgment, it is only fair and just to order the legal representatives to bear on their own the costs of and occasioned by the preparation of the certificates for time estimate, and the application for setting down.

Correspondence enclosed in the trial bundle

57.  The trial bundle goes up to 245 pages. Of those, parties enclose 27 items of correspondence (mostly inter-solicitor correspondence) totaling some 60 pages.

58.  I am grateful to Ms Tina Mok, counsel for the plaintiff, who has painstakingly set out the chronology of all the inter-solicitor correspondence across different issues.

59.  On 23 March 2024, the defendant’s solicitors wrote to (or replied to, which is irrelevant for the present purpose) the plaintiff’s solicitors to seek their comment and approval of the draft trial bundle index. The draft index contained 83 items for correspondence between 17 August 2022 and 19 January 2024.

60.  The parties ultimately managed to agree to include 27 items of correspondence in the trial bundle. I do not think I need to set out how such agreement was obtained; indeed, I am not even sure whether I can do so by simply reading all the correspondence.

61.  The 27 items of correspondence are largely irrelevant to the issues to be considered at the trial. Most pertain to requests for specific discovery of documents. Some concern the case management directions to be obtained from the PI Master. I cannot see the reason why these letters have to be placed in the trial bundle.

62.  Ms Mok submits that these letters are included in the trial bundle at the request of the defendant’s solicitors; there came to a stage where the plaintiff’s solicitors no longer found it costs effective to continue to engage with the defendant’s solicitors on this. From my own reading of the inter-solicitor correspondence in the trial bundle and in the court file, I agree with Ms Mok.

63.  I do not think it will ever be open to the defendant’s solicitors to argue that they insisted to include these letters in the trial bundle on the defendant’s instructions. The duty to prepare trial bundles in an efficient manner rests on the legal representatives; insofar the lay client gives instructions contrary to the underlying objectives of the Civil Justice Reform, it is incumbent on the legal representatives to explain to their client and persuade him/her to retract such instructions.

64.  Thus, I am of the view that the costs of and occasioned by the agreement of trial bundle index should be borne by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed. I further clarify, for the purpose of taxation, that the plaintiff’s solicitors acted reasonably with respect to seeking agreement from the defendant’s solicitors on the draft trial bundle index.

Correspondence concerning the preparation of the trial bundle

65.  When setting the present case down for trial, the Master ordered the plaintiff to lodge the trial bundle 14 days before the commencement of the trial.

66.  Since at least 15 April 2024, the defendant’s solicitors have been writing to the plaintiff’s solicitors, requesting the plaintiff to provide a paginated trial bundle within 7 days. Such requests remained incessant despite the plaintiff pointing out the effect of the order granted by the Master.

67.  Out of courtesy, the plaintiff’s solicitors provided the defendant’s solicitors a draft trial bundle on 22 May 2024. However, the defendant’s solicitors replied on 26 May 2024 that, inter alia, the full Writ of Summons (instead of the extract) should be included, despite the previous agreement on the trial bundle index. Further correspondence ensued as to whether the plaintiff had included all relevant documents in the trial bundle.

68.  The plaintiff’s solicitors finally wrote to the Master on 8 July 2024 to seek further directions. On 8 August 2024, the Master affirmed the terms of her order. She directed the parties to report whether they required a hearing to resolve their differences. By a joint letter dated 12 August 2024, the parties confirmed that there was an agreement on the preparation of the trial bundle, and no hearing would be necessary.

69.  Surprisingly, on 7 November 2024, the defendant’s solicitors wrote to the court to repeat their previous complaints, and apply for a variation of the order of the Master so that the plaintiff would have to lodge and serve the trial bundle 30 days before the trial. It was stated that time would be required to ensure that all documents fair to both parties would be included in the trial bundle.

70.  The matter then came to me by late November as the trial judge assigned to hear the trial commencing on 24 December 2024. I gave directions on 21 November 2024 that, should the defendant wish to vary the timetable laid down and affirmed by the Master, he should take out an application by Summons returnable before me on 27 November 2024. In the end, no application was taken out by the defendant.

71.  Ms Mok submits that the complaints made by the defendant’s solicitors appear to have stemmed from the fact that the they relied on an outdated draft index, instead of the one agreed upon and submitted to the court on 5 April 2024. I agree. I also find it outrageous for the defendant’s solicitors to suggest that they needed more time to “confirm that correct evidence are [sic] all included in the trial bundle, especially the correspondence between the parties”[6].

72.  All these letters sent by the defendant’s solicitors show that they were worse than a circuit show. Agreeing the trial bundle index and adhering to the agreed index to prepare the trial bundles are routine and elementary tasks for a litigation solicitor. I cannot accept that all these letters were not sent because of the gross incompetence of the defendant’s solicitors (and in particular, Mr Yau Chap Yin of the defendant’s solicitors, who appears to be the handling solicitor).

73.  I am of the view that the costs of and occasioned by the preparation of the trial bundle should be borne by the defendant’s solicitors personally, to be taxed on an indemnity basis if not agreed. Again, I clarify for the purpose of taxation that the plaintiff’s solicitors acted reasonably with respect to corresponding with the defendant’s solicitors and the court over the preparation of the trial bundle.

The defendant’s complaint of delay in the service of the trial bundle

74.  Respite was not forthcoming.

75.  On 12 December 2024, the defendant’s solicitors wrote to my clerk to complain that the plaintiff failed to file and serve the trial bundle no later than 14 days before the trial. The letter claimed that the plaintiff only served the trial bundle on 10 December 2024; it was argued that “no later than 14 days” meant there ought to be 14 days in between the commencement of the trial (24 December 2024) and the date of the service of the trial bundle.

76.  I find the complaint unsustainable. If the contention of the defendant’s solicitors were right, it would have rendered Order 3 rule 2(4) of the Rules of the District Court otiose. Whilst any breach of the timetable laid down by the court should not be condoned, I cannot see any justification for raising this petty complaint even if the defendant were right that the plaintiff was guilty of serving the trial bundle 1 day late. The defendant could well have started preparation of the trial even before 10 or 11 December 2024, since he knew full well what documents would be included in the trial bundle based on the agreed trial bundle index. Any prejudice caused by any alleged delay would be minimal. This is different from a case in which parties delayed in filing documents or submissions with the court within time – as this would disrupt the precious reading time the court set aside to prepare for a hearing based on its diary.

The appropriate costs order

77.  The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel, subject to the wasted costs order I set out below. In my judgment, the defendant should be penalized by indemnity costs for putting forward false evidence on how the Accident happened. Judicial resources are wasted, to the extent that I find it to be an abuse of the process of the court, for the defendant to pursue a hopeless defence on liability all along.

78.  The defendant shall pay the plaintiff’s costs on the issue of quantum in the main action at a scale commensurate to those awarded by the Small Claims Tribunal, subject to the wasted costs order I set out below. The plaintiff recovers damages within the jurisdiction of the Small Claims Tribunal. I find that he should have known at the commencement of the present case that he would only have reasonable prospects to recover damages within the jurisdiction of the Small Claims Tribunal. I also find it appropriate to award costs on this basis given the plaintiff’s failure to put sufficient evidence before me to prove his alleged pre-trial loss of earnings. For procedural economy, I summarily assess the plaintiff’s costs on the issue of quantum at HK$5,000.00.

79.  I order the legal representatives to bear their own costs with respect to the preparation of the certificate of time estimate, and the application to set down.

80.  I order the costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters. The defendant’s solicitors shall not recover their own costs on the agreement of the trial bundle index and the preparation and service of the trial bundle from the defendant as well. Since I have invited submissions from counsel over the course of the trial, I do not think it is necessary nor costs proportionate to allow the defendant’s solicitors another chance to explain themselves before I make up my mind. In any event, I am now granting a costs order on nisi basis.

81.  I do not think it is necessary for there to be any specific costs provision in relation to the defendant’s disclosure of the amount of the sanctioned payment in his written closing, as the fault did not derail the trial in any significant way.

CONCLUSION

82.  I enter judgment in favour of the plaintiff for HK$70,500.00. The defendant’s counterclaim is dismissed.

83.  There shall be a costs order nisi as per §§77-80 above. It shall become absolute unless there is any application to vary it within 14 days from today (including any application to vary the wasted costs order).

84.  I must record that Ms Mok has put in her best efforts to assist this court.

Ms Tina Mok, instructed by Joseph M. K. Chan, Solicitors, for the plaintiff

Mr Charles K. C. Chan, instructed by Raymond Cheung & Chan, for the defendant