CHAN SAU CHEUNG v. CHI WO CONTRACTORS LTD AND ANOTHER

DCPI 3003/2020

[2024] HKDC 2146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3003 OF 2020

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DECISION

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Introduction[1]

1.  On 24 October 2024, I handed down the judgment (the “Judgment”) in respect of the present action: see [2024] HKDC 1788[2].

2.  I dismissed the Plaintiff’s claims against the Defendants.

3.  I also made a costs order nisi (the “Costs Order Nisi”) that (i) the Defendants’ costs incurred in the present action, including all costs previously reserved, be paid by the Plaintiff to be taxed if not agreed (with certificate for one counsel); and (ii) the Plaintiff’s costs (before the discharge of legal aid) be taxed in accordance with the Legal Aid Regulation.

4.  There are two summonses before me:-

(1)  By the summons dated 7 November 2024, the Defendants seek to vary the Costs Order Nisi. The Defendant seeks an order that (i) the Plaintiff do pay their costs in the present action, including all costs previously reserved and the present application, to be taxed on an indemnity basis if not agreed (with certificate for one counsel); and (ii) interest on the Defendant’s costs be at an enhanced rate not exceeding 10% above the judgment rate (the “Variation Application”).

(2)  By the summons dated 18 November 2024, the Plaintiff seeks:-

(a)  leave to appeal against the Judgment dated 24 October 2024 (the “Leave Application”); and

(b)  stay of execution of the Judgment dated 24 October 2024 pending appeal (the “Stay Application”).

5.  In the present hearing:-

(1)  Ms Susana Ng of Messrs Winnie Leung & Co represents the Defendants.

(2)  Insofar as the Variation Application is concerned, Mr W Yuen of B Mak & Co has limited instructions to represent the Director of Legal. In this connection, the Plaintiff was granted legal aid until 21 December 2023. As such, the Director of Legal Aid obviously has an interest in the matter and is entitled to be heard.

(3)  Insofar as the Leave Application and Stay Application are concerned, the Plaintiff acts in person.

The Variation Application

6.  On 1 December 2023, the Defendants, through their solicitors, made a sanctioned payment in the sum of HK$180,000 into Court. The deadline for accepting such sanctioned payment without leave was 29 December 2023.

7.  This sanctioned payment was a genuine and bona fide attempt to resolve the disputes in the present proceedings. There is no reason why the Defendants may not rely on the same to seek indemnity costs and enhanced interest against the Plaintiff pursuant to the provisions in Order 22.

8.  On 10 December 2024, the Defendant’s solicitors filed a consent summons, which was signed by themselves and the Plaintiff. The Plaintiff agrees to pay the Defendants’ costs (i) on a party-to-party basis up to 29 December 2023; and (ii) on an indemnity basis from 30 December 2023 onwards. These are the inevitable consequences of the operation of Order 24, rule 22

9.  The Plaintiff also agrees to pay enhanced interest at 10% per annum on the costs and disbursement incurred by the Defendants after 30 December 2023. However, I am not of the view that this is an extreme case that warrants enhanced interest at 10% per annum. I am of the view that it would be fair and proportionate to order 5% above judgment rate in the circumstances of the present case.

10.  In the premises, I am prepared to vary the Costs Order Nisi, and I make a costs order absolute as follows:-

(1)  The Plaintiff do pay the 1^st and 2^nd Defendant’s costs incurred in the present action up to 29 December 2023, including all costs previously reserved, on a party-to-party basis, to be taxed if not agreed;

(2)  The Plaintiff do pay the 1^st and 2^nd Defendant’s costs incurred in the present action from 30 December 2023 onwards, including all costs previously reserved, the summons dated 7 November 2024 taken out by the 1^st and 2^nd Defendants and the consent summons dated 10 December 2024, on an indemnity basis, to be taxed if not agreed (with certificate for one counsel);

(3)  The Plaintiff do pay the 1^st and 2^nd Defendant’s enhanced interest at 5% per annum above judgment rate from 30 December 2023 on the costs and disbursements incurred by the 1^st and 2^nd Defendants from the date of each payment until the date(s) when payment is made to the Defendants; and

(4)  The Plaintiff’s own costs before the discharge of legal aid certificate on 22 December 2023 be taxed in accordance with the Legal Aid Regulations.

The Leave Application

Legal Principles

11.  Pursuant to section 63A of the District Court Ordinance (Cap 336), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

12.  The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

13.  It is trite that an appellate court will not lightly intervene a trial judge’s primary factual findings, unless (i) there is no evidence in support; (ii) the trial judge misunderstood the evidence; or (iii) no reasonable judge could have reached such findings. In Salleh Abu Baker v Anyway Limited [2023] HKCA 187 at para 27-28, G Lam JA stated:-

“27. It is common ground that the principal attack on the judge’s conclusion involves a challenge against his findings of primary fact, and that the plaintiff has to pass a high hurdle in order to justify appellate interference with such findings. Before this court can intervene, it has to be able to conclude that, despite the fact that it does not enjoy the advantages available to the judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336, §42. The starting point is for the appellant to identify palpable errors in the judgment below sufficiently material to warrant intervention by this court. An appeal is not a forum for repeating all the submissions on the evidence made below, as if it were a re-trial, in the hope that the appellate judges may come to a different view of the facts from that of the judge: China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015), §§15-16.

28. While this Court may interfere with a finding for which there was no evidence in support, or which was based on a misunderstanding of the evidence, or which no reasonable judge could have reached, it must be borne in mind that the trial court is the primary tribunal for the assessment of the evidence and making relevant findings of fact. As Kwan VP observed in Shine Grace Investment Ltd v Citibank NA & another [2022] HKCA 1341 at §60(2):

“It is the trial judge who has the primary role in assessing evidence and making relevant findings of fact, not the appeal court. The trial before the primary judge should be the ‘main event’, not a ‘tryout on the road’. The appeal court should defer to the trial judge’s conclusion even if in some doubt as to its correctness, because it is unlikely to gain as much insight to the facts from seeing how the evidence unfolded, or be as familiar with the evidence as the primary judge, who has lived with the trial from beginning to end. Besides, the perception of the appeal court may be narrowed or distorted by selective readings of the transcript when the focus is on the challenge of a particular finding.”

14.  As Kwan JA (as she then was) pointed out in秦錦釗 及 香港特別行政區 [2018] HKCA 167 at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 at para 11 (per Chow JA).

The 1^st Proposed Ground of Appeal

15.  The proposed grounds of appeal are set out in the Plaintiff’s affirmation dated 18 November 2024.

16.  Under the first proposed ground of appeal, the Plaintiff contends that I was wrong and/or unreasonable to reject his case regarding the Accident and to find that there was no negligence and/or breach of duties on the part of the Defendants. In particular, the Plaintiff contends that:-

(1)  The Slop was long and steep. Whilst it was difficult for him to maintain balance, the Defendant did not erect a work platform and provided adequate equipment. (see paragraph 1(i)).

(2)  There was heavy rainfall during the few days before the Accident took place. (see paragraph 1(ii)).

(3)  Regardless of how the Accident occurred, the Plaintiff was hit by an aluminum hoard board, and the Accident could have been avoided had the Defendants provided a safety belt (see paragraph 1(iii)); and

(4)  Had a helmet been provided, the Plaintiff’s head injury could have been reduced (see paragraph 1(iv)).

17.  For the following reasons, I am of the view that the first proposed grounds of appeal are wholly unarguable, and the Plaintiffs are unable to demonstrate why my findings and conclusion were plainly wrong and/or untenable.

18.  First of all, as elaborated in paragraphs 24 to 39 of the Judgment, the Plaintiff’s case regarding the Accident is flatly contradicted by contemporaneous records contained in the accident reports dated 16 and 19 October 2017 (which were signed by Mr Ng and the Plaintiff himself) as well as the version of events that the Plaintiff told the doctors who treated him immediately after the Accident. The explanations provided by the Plaintiff and Mr Ng during the trial were wholly unconvincing and incredible. The Plaintiff cannot explain my factual findings were plainly wrong and/or untenable.

19.  Second, for the reasons elaborated in paragraphs 72 to 125 of the Judgment, even if the Plaintiff’s case on liability were to be accepted, he was only entitled to damages of HK$290,190.50. This was substantially less than the amount of employee’s compensation of HK$730,456,72, which the Plaintiff had already received. As such, the Plaintiff was not entitled to any further compensation.

20.  Third, insofar as the contentions under sub-paragraph (iii) of the Plaintiff’s first ground of appeal are concerned:-

(1)  It is important to note that the Plaintiff did not advance an alternative case based on the allegations contained in the accident reports dated 16 and 19 October 2017. Whilst these allegations do not form part of the pleaded case of the Plaintiff, both the Plaintiff and Mr Ng (who were, in my view, incredible) even disowned these allegations when they were cross-examined at trial. I was (and still am) firmly of the view that it would not be open to the Plaintiff to bring claims against the Defendants based on these unpleaded scenarios. This would be unfair to the Defendants. Had the Defendants been informed in advanced, they might have conducted the proceedings in a different manner. For instance, the Defendants might have made different decisions as to the evidenced to be adduced at trial.

(2)  In the premises, following the rejection of the Plaintiff’s pleaded case, his claims against the Defendant should be rejected: see Mak Kang Hoi v Ho Yuk Wah (2007) 10 HKCFAR 552 at para 102 (per Mortimer NPJ) cited in Judgment, paras 47 and 67 to 68.

(3)  In any event, out of abundance of caution, in paragraphs 40 to 45 of the Judgment, I pointed out that even based on the scenario set out in the accident reports, there was no causation between the alleged absence of safety belt and the alleged injuries suffered by the Plaintiff. This finding was a corollary to my findings that (i) Mr Ng and/or the aluminum board did not fall onto the Plaintiff from a ladder; and (ii) the Plaintiff did not fall down along the Slope.

(4)  In paragraph 48 of the Judgment, I further pointed out that the Defendants could not be blamed for the Plaintiff’s inability to grip the aluminum board from Mr Ng and/or his inability to maintain balance. In an imperfect world, accidents might still occur even though no one was at fault: see Wan & Ors v Honest Scaffold General Contractor Co Ltd [2001] HKLRD 751 at para 30 (per DHCJ Longley); Dillion v Clyde Stevedoring Company Limited [1967] STL 103, 104 (Lord Milligan); and Baxter v Colvilles Limited [1959] SLT 325, 327 (Lord Justice-Clerk (Thomson) (cited in Judgment, paras 48 and 50). On the evidence before me, I was unable to find that there was any breach of duties, negligence and/or wrongdoings on the part of the Defendants

21.  Fourth, as regards the contentions under sub-paragraph (iv) of the Plaintiff’s first ground of appeal, following the analysis of the factual and medical evidence (see Judgment, paras 74 to 106), in paragraphs 107 and 108 of the Judgment, I found that the Plaintiff’s injury was not serious at all, and there was merely some tender bruised swelling in the Plaintiff’s occiput insofar as the head of the Plaintiff was concerned. In my view, there is no room for the Plaintiff to make a song and dance about this minor injury. As pointed out, the Plaintiff had received employee’s compensation of HK$730,456,72 before the trial begun. Putting aside the points discussed in paragraphs 18 and 20 above, there is no realistic possibility for the Plaintiff to seek recovering an amount exceeding HK$730,456,72 in respect of, inter alios, the bruised swelling in his occiput.

The 2^nd and 3^rd Proposed Grounds of Appeal

22.  It would be convenient to deal with the second and third proposed grounds of appeal together:-

(1)  The second proposed ground of appeal concerns my findings on the extent of the Plaintiff’s injury and the questions of quantum. Based on the sick leave certificates issued by doctors, the Plaintiff contends I should have held that he was entitled to sick leave of 1267 days. The Plaintiff further contends I erred in that I only accepted the opinion expressed by Defendants’ medical experts, that I failed to consider other evidence and that I placed too much weight on the surveillance videos, which were taken 4 years after the Accident occurred.

(2)  Under the third proposed ground of appeal, the Plaintiff contends that I was wrong to find that he was only entitled to sick leave of 6 months.

23.  I am of the view that the contentions under second and third proposed grounds of appeal are also wholly unarguable.

24.  Contrary to the Plaintiff’s incorrect suggestion, as elaborated in paragraphs 72 to 125 of the Judgment, apart from the opinion expressed by Dr Lee (who was the Defendants’ medical expert), I also studied and analyzed, inter alios:-

(1)  the Plaintiff’s viva voice evidence regarding his injury and physical condition (which was flatly contradicted by the contemporaneous medical records in multiple respects): see eg Judgment, paras 91 to 94;

(2)  the incontrovertible factual evidence, such as the Immigration Department’s records, which show that the Plaintiff made frequent day trips and overnight trips to Macao shortly after the Accident occurred and that the Plaintiff was highly energetic at the material times: see Judgment, paras 74 to 81.

(3)  the contemporaneous medical records provided by various hospitals and clinics, which show that the Plaintiff repeatedly failed malingering tests, that he concocted and exaggerated some of his conditions and that he requested the contents of his medical reports be changed: see eg Judgment, paras 82 to 90 and 95 to 97;

(4)  the Plaintiff’s medical history and instructions provided to the parties’ medical experts, which were misleading and false: see Judgment, paras 98 to 101;

(5)  the opinion expressed by the Plaintiff’s medical expert, namely Dr Lie, which I do not prefer and which is not consistent with the objective outcome of the medical examinations (such as MRI, brain scans and malingering tests): see eg Judgment, paras 108(4) and 117.

25.  The overwhelming medical evidence as well as factual evidence show that the Plaintiff vastly exaggerated his injury, and some of the conditions that he allegedly suffered were even concocted.

26.  Bearing in mind that the Court has a duty to form its own opinion on the sick leave granted based on the totality of the evidence and that doctors are not expected to be dismissive towards patients who make subjective complaints about pain: see Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210 at para 18 (per Le Pichon JA); Cheung Sau Lin v Tsui Wah Efford Management Ltd [2018] HKDC 941 at paras 18-22; and Rai Surya Prakash v Pacific Crown Security Services Ltd & Anor [2020] HKCFI 917, para 42 (per DHCJ Anson Wong SC), I was unable to accept the Plaintiff’s assertion that he was entitled to sick leave of 1267 days merely because he managed to obtain certificates from the doctors who treated him previously.

27.  Lastly, as regards the surveillance videos, I do not lose sight of the undisputed fact that they were taken on 15 December 2021, 7 April 2022 and 13 April 2022: see Judgment, para 102. Whilst the surveillance videos did not show the Plaintiff’s condition immediately after the Accident (which took place on 3 October 2017), they did shed light on the Plaintiff’s condition as of December 2021 and April 2022. As explained in paragraphs 102 to 106 of the Judgment, the surveillance videos show that the Plaintiff’s limbs functioned normally, and he maintained good balance in daily activities. In light of the Plaintiff’s complaints about his physical conditions, there was no reason why the Court might not consider the surveillance videos.

The 4^th Proposed Ground of Appeal

28.  Under the fourth ground of appeal, the Plaintiff contends that I should not have ordered costs against him.

29.  This ground of appeal has no substance and is unarguable. There is no reason why the Plaintiff, who is the unsuccessful party, should not pay the Defendants’ costs.

Conclusion

30.  For all the above reasons, I am of the view that the Plaintiff’s intended appeal does not have a reasonable prospect of success. I am also unable to see any reason in the interest of justice why the appeal should be heard.

31.  In the premises, I dismiss the Plaintiff’s Leave Application.

The Stay Application

32.  As I understand, the purpose of the Stay Application is to stop the Defendants from recovering the costs incurred in the present proceedings when the intended appeal is pending resolution.

33.  Following the outcome of the Leave Application, I dismiss the Stay Application.

Disposition

34.  I allow the Defendant’s Variation Application under the summons dated 7 November 2024. I make an order in terms of paragraph 10 above.

35.  I dismiss the Leave Application and Stay Application under the Plaintiff’ summons dated 18 November 2024. The said summons is dismissed. I order that the costs of the summons dated 18 November 2024 be paid by the Plaintiff to the Defendant forthwith, summarily assessed at HK$45,000.