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DCCJ 3078/2011
[2018] HKDC 695
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3078 OF 2011
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BETWEEN
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CHUNG YOON BAE |
Plaintiff |
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and
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REHMAN ATEEQ-UR |
Defendant |
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| Before: His Honour Judge MK Liu in Chambers (Open to Public) |
| Date of Hearing: 14 June 2018 |
| Date of Decision: 20 June 2018 |
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DECISION
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Introduction
1. By a judgment handed down on 19 April 2018 (“the Judgment”), I assessed the quantum of damages payable by the defendant to the plaintiff as a result of the water seepage from the defendant’s premises at HKD1,000,000 plus interest. By a summons filed on 15 May 2018 (“the Summons”), the defendant seeks leave to appeal. The facts have been set out in the Judgment and I would not repeat the same herein. For ease of reference, unless otherwise specified, the abbreviations used in the Judgment are adopted herein.
The Grounds of Appeal
2. The defendant puts forward 2 grounds of appeal in the summons:-
(1) that this court erred in law regarding the burden of proof; and
(2) that this court erred in not requiring the attendance of the Expert.
3. Mr Hunter, counsel for the defendant, has provided me a document dated 3 May 2018 and called “Grounds of Appeal”. These are in fact the written submissions made by Mr Hunter. To avoid confusion, I would call this document as the defendant’s written submissions (“D’s WS”).
4. It is pertinent to note that the defendant’s position as set out in the D’s WS:-
“5. The court correctly focused on the latter period of water seepage, that is to say the following the burst water pipe incident. The expert report was based on evidence collected before this period and of little use beyond establishing the source of water seepage, so, in respect of the damage caused, the only evidence available was that of the Plaintiff and the invoices for repair work subsequently carried out, together with the tenancy agreements and invoices regarding the rent of alternative accommodation during the renovation period.
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9. The Plaintiff gave evidence regarding the involvement of walls, floors and certain fixtures. This was, essentially, the only evidence of the nature and extent of such damage as there may have been. The court accepted the witness as credible and reliable. His credibility was not impugned by the Defence. Credibility and reliability, however, are not the same thing.
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11. …… the credibility or honesty of the witness[1] is not impugned ……” (emphasis added)
These have to be borne in mind in considering the defendant’s application for leave to appeal.
The principles
5. The principles concerning leave to appeal are well established:-
(1) Leave to appeal from this court to the Court of Appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard[2].
(2) Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable[3].
(3) The appellant has to overcome a very high threshold in order to successfully challenge the factual findings made by the trial judge. The Court of Appeal would not interfere unless the factual findings made by the trial judge are plainly wrong[4].
Ground 1
6. With respect to Mr Hunter, it would certainly not be right to say that this court has made any error regarding the burden of proof. This court made the assessment in the Judgment after considering the evidence giving by the plaintiff and the documents in this case.
7. Mr Hunter has made some criticism against the quality of the 2nd plaintiff’s evidence. Mr Law, counsel for the plaintiffs, has made a forceful reply to Mr Hunter’s submissions. I agree with Mr Law that the criticism made by the defendant is without merit.
(1) Mr Hunter submits that “at no point and nowhere in the available evidence was the extent of the damage of the Water Flooding Incident described”[5]. This cannot be not correct. The evidence concerning the Water Flooding Incident has been summarized in the Judgment §§12(h) to 12(k). The extent of the damage has also been set out the plaintiff’s witness statement §§11-20. The damage was also supported by the quotation and invoices. The defendant’s contention is simply untenable.
(2) It is submitted that “there were no photographs or measurements to support the evidence”[6]. However, the defendant does not dispute that the plaintiff is a credible witness. There is also no challenge to the reliability of the plaintiff’s evidence during cross-examination. The plaintiffs have also produced documents[7] in support of their claim. In my view, there is nothing in this criticism.
(3) It is submitted the plaintiff is “someone with an interest in the outcome”[8]. However, Mr Hunter has made it plain that there is no challenge to the plaintiff’s credibility or honesty. That being the case, there is in fact no substance in saying that the 2nd plaintiff is someone having an interest in the outcome of the case.
(4) It is also submitted that “the witness was being asked to recall something that happened seven years ago”[9] and the evidence given may not be reliable. However, one’s residence being severely damaged by water seepage problems would not a daily encounter but would be a special event in one’s life. Further, Mr Hunter did not test the reliability of the plaintiff’s memory during cross-examination, and did not put to the plaintiff that her memory was not reliable. I am of the view that there is no merit in this point.
8. There is no merit in this ground.
Ground 2
9. Mr Hunter refers me to paragraph 8(e) of his written opening submissions provided to the court before the commencement of the trial, in which he says:-
“The Defects Location plan [ie Plan 1] only shows two bedrooms whereas the Reinstatement Floor Plan [ie Plan 2] shows 4 suggesting the Plaintiff has undertaken work irrelevant to the claim.”
10. Mr Hunter submits that I erred in not requiring the Expert to attend the trial in the light of the point taken by him in his written opening submissions.
11. However, at the beginning of the trial, I asked the parties whether cross-examination of the Expert was necessary. Mr Hunter replied that he had no insistence on having cross-examination of the Expert.As a result of this reply, I directed the 2 reports made by the Expert be read as evidence in the trial and there would be no need for the Expert to attend the trial to give oral evidence[10]. Although Mr Hunter had put down a point in paragraph 8(e) of his written opening submissions, counsel was at liberty to decide how to run his case at the trial, including modifying or giving up some points previously made in his written opening submissions. When counsel was asked about the necessity of the Expert’s attendance at the trial, counsel did not say that it would be necessary to cross-examine the Expert. Having heard this reply, both the court and Mr Law would be entitled to treat that the point in paragraph 8(e) of Mr Hunter’s written opening submissions would not be pursued at the trial. During this hearing, Mr Hunter accepts that the court and Mr Law might take that view in the trial. In these circumstances, with respect to Mr Hunter, I do not think the criticism under Ground 2 is valid.
12. Further, I am of the view that the defendant has no reasonable chance of success in making out the point that the plaintiff has taken the renovation as a result of the water seepage problems as an opportunity to build 2 more bedrooms in 7B:-
(1) The point has never been put to the plaintiff while he was giving evidence[11].
(2) The plaintiff has given factual evidence that at all times, there were 4 bedrooms in 7B. His evidence is supported by a written quotation issued on 20 September 2012[12].
(3) Even up to now, there is no challenge to the plaintiff’s credibility or honesty.
13. There is also no merit in this ground.
No leave should be granted
14. By reason of the aforesaid, in my judgment, there is no reasonable prospect of success in the defendant’s appeal. There is also no any other reason in the interests of justice that the appeal should be heard. I would dismiss the summons.
Disposition
15. I dismiss the summons.
16. I have heard submissions on costs. In my view, costs should follow the event. I order that costs of the summons be to the plaintiff, with a certificate for counsel, to be taxed if not agreed.
17. I thank Mr Law and Mr Hunter for the assistance provided to the court.
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( MK Liu ) |
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District Judge
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Mr Ryan Law, instructed by Joseph Leung & Associates, for the plaintiff
Mr Hugh Rowan Hunter, instructed by Lai & Chaudhry Solicitors LLP, for the defendant
[1] The plaintiff is the only factual witness giving evidence in the trial.
[2] District Court Ordinance, s 63A(2)
[3] SMSE v KL [2009] 4 HKLRD 125, at [17]
[4] Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd. and Others (CACV 11/2015, 27 November 2015)
[5] D’s WS §10
[6] D’s WS §10
[7] Mentioned in D’s WS §5
[8] D’s WS §11
[9] D’s WS §11
[10] Judgment §6
[11] Judgment §18(g)
[12] Judgment §18(b) and (c)
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