SINGH HARJIT v. DETERMINATION BUSINESS LTD t/a MUSE STUDIO

CACV 68/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 68 OF 2015

(ON APPEAL FROM DCEC NO. 1082 OF 2011)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  On 27 February 2015, Deputy District Judge Sanjay A Sakhrani handed down his judgment in an employees’ compensation case after a trial in December 2014 which lasted for seven days.  He dismissed the claim of the applicant, Singh Harjit, with costs.  The applicant had legal aid in the court below and was represented by counsel and solicitors.  He appealed against the dismissal of his claim as of right.  He acts in person on appeal.

2.  In summary, the judge found that at the material time on 8 May 2010 the applicant was working as a casual worker for the respondent transporting marble tiles for the flooring at the site, and that he was an employee of the respondent and not an independent contractor.  The judge found on the medical evidence that the applicant went to the Accident & Emergency Department of the Tuen Mun Hospital on 9 May 2010 and complained he had sprained his back.  The judge also accepted the assessment of the Employees’ Compensation (Ordinary Assessment) Board that the applicant has suffered 5% permanent loss of earning capacity for the injury to his back.  However, the judge was not satisfied that the applicant was injured in an accident on 8 May 2010 as alleged and that such injury arose out of and was in the course of his employment with the respondent.  The judge therefore dismissed the applicant’s claim.

3.  The judge did not need to assess quantum in light of his decision on liability, but he went on to make an assessment nonetheless, in case he should be held to be wrong on liability.  He assessed the total compensation at $57,421.

4.  The applicant appealed against these findings on liability and quantum: (1) he did not suffer an injury at the site on 8 May 2010 in the course of employment as alleged; and (2) he worked only five days a month on average for the respondent, not 26 days a month as alleged.

5.  Both are primary findings of fact made by the trial judge, arrived at by him after considering the credibility of the witnesses called on both sides, and was tested against the inherent probabilities and whether a party’s case was contradicted in a material way by undisputed or indisputable evidence.

The approach in challenging findings of fact on appeal

6.  The approach of the appeal court in this kind of situation is well established.  As the Court of Final Appeal has held in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, in considering an appeal against a primary finding of fact, the question for the Court of Appeal was whether, even though it did not have the advantages enjoyed by the trial judge who received the evidence at first hand, it was nevertheless satisfied that his conclusion on the facts was “plainly wrong”.  The Court of Appeal should intervene only if so satisfied.  If not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to the correctness of the trial judge’s decision on the facts.

7.  In Piglowska v Piglowski [1999] 1 WLR 1360 at 1372, Lord Hoffmann referred to the advantage that a judge at first instance had in seeing the parties and the other witnesses when deciding questions of credibility and primary fact.  He quoted from his earlier judgment in Biogen Inc v Medeva plc [1997] RPC 1 at 45:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

8.  More recently, Lord Hodge in the Privy Council in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 at §§11 to 18 stated these principles after having reviewed a number of relevant authorities:

(1) The phrase “plainly wrong” in this context directs the appeal court to consider whether it was permissible for the trial judge to make the findings of fact in the face of the evidence as a whole.  That is a judgment that the appeal court has to make in the knowledge that it has only the printed record of the evidence.  The court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions.

(2) The traditional explanation is that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges.  The importance of the part played by such advantages varies through a wide spectrum.  At one end of the spectrum is where credibility is crucial, such as where there is a straight conflict of primary fact between witnesses.  In this situation, the appeal court can hardly ever interfere.  At the other end of the spectrum is where inference is drawn entirely or almost entirely from undisputed primary facts, and hence the appeal court is in just as good a position as the trial judge to make the decision.  Where honesty of a witness is critical, one is closer to the former end of the spectrum as the advantage which the trial judge has had in assessing the credibility and reliability of the oral evidence is not available to the appeal court.

(3) The principles can be justified on the grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).

9.  In Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600, Lord Reed JSC made further observations at §§62 to 68 about the criterion for appellate intervention that the trial judge must have gone “plainly wrong”.  The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.  Hence, in the absence of some other identifiable errors, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appeal court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.

10.  In the present case, there was a straight conflict of evidence given by the witnesses on both sides.  The evaluation of the oral evidence is crucial to the conclusion reached by the judge as to the reliability of the testimony of witnesses.  This court does not have the same advantage of the trial judge in assessing the credibility and reliability of the oral testimony.  Besides, we have not even been provided with the transcript of the evidence at the trial.  Only the witness statements have been included in the appeal bundle.

11.  This case clearly falls within that end of the spectrum in which the trial judge has an advantage over the appeal court so that it would be rare for the appeal court to disturb the primary findings of fact of the judge.  To succeed on appeal, the applicant would need to identify mistakes in the judge’s evaluation of the evidence that are sufficiently material to undermine the judge’s conclusions.  And we would only interfere with the judge’s findings if we are satisfied that his decision cannot reasonably be explained or justified.

The finding that the applicant did not suffer an injury in the course of employment

12.  Notwithstanding the proximity in time between the applicant’s attendance in hospital complaining of back pain (confirmed by medical evidence to have resulted in permanent loss of earning capacity) and the date of the alleged accident, the judge made a finding that he was not satisfied on the evidence the applicant suffered an injury on 8 May 2010 in the course of his employment with the respondent as alleged.  This finding was based on a number of subsidiary factual findings made by the judge.

13.  The applicant claimed he sustained the injury at the site at about 3 pm on 8 May 2010, just before the tea break, when he was transporting a large marble tile up the staircase with a co-worker Brar Gurwinder Singh (“Brar”, who was called as a witness by the applicant).  The applicant alleged he first telephoned the respondent’s staff named Oscar after 3 pm about the accident and injury and Oscar told him to rest and to inform Ms Lau Tsz Ching (“Ching”), who was another employee of the respondent and was assigned a managerial role at the work sites.  The applicant claimed he made two telephone calls to Ching that day, at around 3:15 pm to 3:50 pm (“the first telephone call”) and at around 6 pm (“the second telephone call”).  In the first telephone call, he informed Ching of his recent accident and injury.  He claimed after resting for an hour at the site he decided to go home and the job had not been completed by the time he left.  At around 6 pm, Brar contacted the applicant to tell him that the job had been completed.  So the applicant made the second telephone call to Ching to inform her about that.  On 10 May 2010, which was after he had been to the doctors, he spoke to Ching by telephone again and told her that he had been given sick leave and could not resume work.

14.  The applicant and Brar were not believed by the judge on each of the allegations mentioned above.  The judge accepted the evidence of the respondent’s director Cheung Kwok Wai (“Cheung”) and Ching that there was no one called Oscar working for the respondent at the time or who had given instructions to the applicant and other workers at the site.  He found the applicant’s evidence about the first telephone call “incredible”, especially in light of a text message sent by the applicant to Ching at 4:40 pm (in between the two alleged calls) seeking payment of his wages and making no mention of any injury.  He accepted the evidence of Cheung and Ching that they were at the site between 2 pm and 4 pm and they were not told by anyone that the applicant had suffered an injury.  The judge found that the only reasonable explanation for the applicant’s text message at 4:40 pm was that the job had been completed by that time, not at around 6 pm as alleged by the applicant and Brar.  The judge also accepted Ching’s evidence that on 10 May 2010 the applicant did not speak to her about his sick leave as alleged.  He found that when Ching spoke to the applicant on 12 May about hiring him for a possible job, the applicant never told her he sprained his back at the site but simply that he had sprained his back.

15.  In summary, the judge rejected the applicant’s version of the events in relation to the injury and also found Brar to be an unreliable and unimpressive witness.  The judge believed the version of Cheung and Ching of the events on 8 May 2010 and found their evidence straightforward and inherently credible.

16.  The applicant advanced 12 grounds in his notice of appeal to challenge the judge’s findings on this issue.  None of the grounds are of any merit.  Most of them simply asserted that the judge was in error in making particular findings, with hardly any basis to substantiate the assertion.

17.  Regarding the contention that the judge should have found on account of the applicant’s low level of education that he would have spoken to Ching on the telephone about the accident rather than via a text message, it is open to the judge to find, on the text messages produced before him, that the applicant would have communicated with Ching about the accident by text messaging as on other matters.  The complaint that the respondent had only produced some but not all of the text messages exchanged is of no substance.  It is far too late to make this complaint.  If there were indeed other material text messages, this should have been raised before the trial took place by seeking appropriate discovery of documents.

18.  Equally, the judge was entitled to accept the evidence of Cheung and Ching that they had stayed for two hours at the site in the afternoon of 8 May 2010, notwithstanding that it was a Saturday afternoon and was outside the working hours of Ching.

19.  The applicant has failed to persuade the court that the judge is plainly wrong in making the primary findings of fact on liability.  He has failed to identify any or any significant mistakes in the judge’s evaluation of the evidence sufficiently material to undermine the judge’s conclusions.  There is no basis to interfere with the judge’s findings on this issue.

The finding that the applicant worked only five days a month on average

20.  The judge’s finding was based on the “Record for Delivery Workers” produced by the respondent.  This was consistent with the tenor of the respondent’s evidence that the applicant would only be engaged on a casual basis for one or two days during the end of a project.

21.  In contrast, the applicant did not adduce any documentary evidence to substantiate his assertion that he was paid by the respondent on the 5^th or 10^th of the month on a monthly basis.  According to the applicant, the respondent would pay him primarily by bank deposit into his bank account or by cash and he was also paid by cheque on at least two occasions.  Without such documentary evidence, the judge was not satisfied that the applicant worked 26 days a month for the respondent.  The only available evidence showed that the applicant worked a few days in April 2010 and did work (before his alleged accident) or would have worked (after the alleged accident) only a few days in May 2010.

22.  The applicant advanced four grounds to challenge this finding in his notice of appeal.  Again, they are merely assertions with no substantial basis to indicate in what way the judge had gone wrong.  The judge was entitled to reach the conclusion he did on this issue.  There is no basis to say that he was wrong, let alone plainly wrong.

23.  For the above reasons, this appeal is dismissed with costs to the respondent.