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

CACV 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.86 of 2008

(On appeal from HCPI No. 938 of 2004)

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BETWEEN:

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JUDGMENT

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Hon. Cheung CJHC:

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

Hon. Cheung JA:

2.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

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

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

History of proceedings

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

Application for leave

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

The 1^st question

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

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

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

The 2^nd question

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

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

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

Order

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