KING POLICY DEVELOPMENT LTD v. WAN KIN SHING

CACV 107/2018

[2019] HKCA 1094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2018

(ON APPEAL FROM HCA 696/2015)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

Introduction

1.  This is the defendant’s appeal from the judgment of Chung J (“the Judge”) on 29 March 2018 (“the Judgment”) granting an injunction in favour of the plaintiff to restrain the defendant from (i) damaging, excavating and/or carrying out any construction work on the plaintiff’s land and (ii) disconnecting and removing any pipe, drain and other items or articles which was connected, installed and/or placed by the defendant on the plaintiff’s land. 

2.  On 30 July 2018, the defendant issued a summons seeking leave to adduce further evidence on appeal.  The application was determined on the papers based on submissions lodged with the Court.  The main contention was whether the defendant has shown special grounds and satisfied the three conditions in Ladd v Marshall [1954] 1 WLR 1489 at 1491 for admission of further evidence on appeal.

3.  After considering the submissions from the parties, we dismissed the defendant’s application to adduce new evidence.  The following are our reasons for such determination.

Application for admission of fresh evidence

4.  In the summons dated 30 July 2018, the defendant sought to adduce the following new evidence for the purpose of this appeal:

(1)  eight pictures taken at different locations displaying installation and connection of water pipes and water meters (referred as “exhibit N-1” by the defendant);

(2)  seven drawings which the defendant called “water work progress plan” (made apparently either by himself or someone on his behalf though he did not identify the maker of the drawings and the remarks set out at the bottom of each drawing) to illustrate the excavation and installation works at the lane (referred as “exhibit N-2” by the defendant);

(3)  a video file recording conversation between Mr Wang Jun and the defendant on 16 March 2015 (produced as “WKS-54” by the defendant in his affirmation of 30 July 2018);

(4)  a video file recording conversation between the defendant and a Mr Chan Kin Sang on 17 March 2015 (referred as “WKS-29” by the defendant in his affirmation);

(5)  several pictures taken from a video file recording two police officers attending the scene on 17 March 2015 upon report made by the plaintiff regarding the excavation works carried out by the defendant (referred as “WKS-55a” by the defendant in his affirmation); and

(6)  audio file of the video described at (5) (referred as “WKS-55b” by the defendant in his affirmation). 

5.  It is well established that this court will not admit fresh evidence on an appeal unless the party who wishes to do so satisfied the criteria in Ladd v Marshall, supra by showing that:

(a)  The evidence could not have been obtained for use at the trial with reasonable diligence;

(b)  The evidence would, or might, if believed, have an important influence on the outcome, though not necessarily decisive, and

(c)  The evidence would probably be accepted as truthful.

6.  The defendant did not explain how the new evidence would satisfy the three conditions in Ladd v Marshall in his supporting affirmation and/or his skeleton arguments to admit the new evidence. He merely explained how the documents may from his point of view assist his appeal. 

7.  According to the defendant, he had tried to adduce documents (1) and (2) at the trial at a very late stage[1] but the Judge refused to admit the documents.  He did not produce for our consideration the relevant transcript of the trial where the alleged attempts were made and rejected.  There is no appeal against the exercise of discretion by the Judge.

8.  In the absence of such appeal, this Court will not admit documents (1) and (2) as fresh evidence since they were obviously available before the trial and the defendant had failed to exercise due diligence in procuring their disclosure and production in a timely manner before trial to facilitate admission of the same at the trial.  Thus, it is not open to have such evidence to be admitted on appeal when there is no appeal against the refusal by the judge to admit the same. 

9.  Further, we also fail to see how these documents could have important influence on the outcome of this appeal.  The mere examination of the photographs and drawings were of no assistance to the defendant in establishing a defence and his remarks on them needed explanation. The defendant has not produced any witness statement to account for the remarks and how these documents related to his defence based on the Waterworks Ordinance Cap 102.  It is not acceptable for such substantial evidence to be adduced in the form of some written remarks alongside the photographs and drawings or by way of submissions in support of an application for admission of fresh evidence. Such evidence should have been prepared well before the trial and adduced orally at the trial and the witness would have to be available for cross-examination.

10.  Though the defendant tried to account for the relevance in his submissions, those submissions should have been tested by cross-examination and might have been challenged by evidence from the plaintiff in response.  In the absence of such testing and challenges, we are unable to accept that such evidence would probably be accepted as truthful.

11.  In relation to documents (3) to (6), the relevant video and audio files were put in evidence at the trial.  They were also included in the appeal bundles[2].  If necessary, the Court can view the same on its own.  We do not find it necessary to have the so-called legible copies of those clips prepared by the defendant to be admitted as further evidence for the proper conduct of the appeal.

12.  We therefore dismissed the defendant’s summons dated 30 July 2018 at the beginning of the hearing of the appeal.