CHEUNG YUEN YING v. INTEGRATED DISPLAY TECHNOLOGY LTD

HCMP 1550/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1550 OF 2016

(ON INTENDED APPEAL FROM DCPI NO. 2103 OF 2013)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Applications

1. There are two applications brought by the plaintiff before the Court.  The first is by way of summons dated 27 June 2016 for leave to appeal out of time of the judgment of Deputy District Judge Liu dated 16 November 2015 dismissing her claim for personal injuries against the defendant.  The other one is by way of another summons dated 22 June 2016 for order requiring the Hong Kong Trade Development Council to produce layout plans of the defendant’s exhibition counter in 2010.

Proceedings below

2. The defendant participated at the Hong Kong Electronics Fair 2010 held at the Hong Kong Convention and Exhibition Centre. It had an exhibition counter with a booth.  There were some display showcases inside the counter and around the booth.  The lower floor of the booth was elevated from the ground at a height of about 4 inches.  There was concealed light under the elevated platform.

3. The plaintiff was at the material times employed by the defendant as a cleaner at the counter.

4. On 13 October 2010, at about 9:30 am, Madam Lo Yuen Kam of the defendant instructed the plaintiff to clean one of the showcases at the counter.  The plaintiff then turned round and walked towards the elevated platform of the booth to get a piece of cloth in order to clean the showcase.  She fell at the edge of the elevated platform.

5. The plaintiff commenced the personal injury action below against the defendant.  She claimed loss and damage in the sum of HK$1,292,733.24 but agreed to waive any amount of damages exceeding HK$1 million.

6. The defendant denied liability, contending that the plaintiff tripped because she was not paying attention to where she was walking and was oblivious to the environment at the defendant’s exhibition counter.  On quantum, the defendant’s case was that the plaintiff would only be entitled to HK$97,453.38.

7. At the trial before Deputy District Judge Liu, both Madam Lo of the plaintiff and the defendant gave evidence on how the accident occurred.  The parties adduced, by agreement, two joint medical reports prepared by their respective doctor, and video footages produced by the defendant showing the defendant’s exhibition counter in the afternoon of 13 October 2010 and 14 October 2010.

8. The Deputy Judge handed down his judgment on 16 November 2015.

9. The Deputy Judge found the plaintiff an unreliable witness whose evidence was contradicted in many aspects by the documentary evidence, video footages and medical evidence.  He in particular found that she had exaggerated her injuries.  In the end he rejected her evidence.  On the other hand, he found that Madam Lo was an honest and reliable witness.  He accepted her evidence and preferred her evidence to the plaintiff’s where there was a conflict between their evidence.

10. After carefully analyzed the evidence, for the reasons that he gave, the Judge found against the plaintiff, among other things, that the elevated platform of the booth was not unsafe as alleged; and that the defendant had discharged its duty of exercising reasonable care towards the plaintiff as its employee.  He found that the accident was caused by the plaintiff’s failure to pay due care and attention to the elevated platform, which was conspicuous and would have been seen by anyone paying proper attention.  He therefore concluded that the plaintiff had failed on proving the defendant’s liability.

11. For completeness, the Judge went on to deal with quantum.  For the reasons that he gave, he arrived at HK$180,000 as PSLA, HK$22,642.50 as pre-trial loss of earnings, and HK$236,167.50 as special damages, totalling HK$236,167.50.  After giving credit to employee’s compensation already received by the plaintiff in the sum of HK$218,468.60, the net amount of damages that would be awarded if liability was established came to HK$17,698.90.

12. The plaintiff then applied for leave to appeal and to adduce fresh evidence. Both applications were rejected by the Judge on 13 May 2016.

Leave to appeal out of time

13. It is trite that an applicant for leave to appeal out of time must explain the delay and where the delay is inexcusable, although insubstantial, the applicant faces a higher threshold, that is, he must show a real prospect of success on the merits and not just simply a reasonable prospect of success.

14. Here, the Judge refused to grant leave to appeal on 13 May 2016.  The plaintiff ought to have renewed the leave application before the Court of Appeal on or before 27 May 2016.  She did not do so until 7 June2016.  She was late for 11 days.  The delay was not very substantial but she had not given any reason for the delay.  That being the case, she has to show a real prospect of success for her appeal.

15. The plaintiff relied on three grounds of appeal.

16. First, the plaintiff argued that the video footages produced at trial showing the surrounding of the defendant’s booth were false.  There is simply no merit in this ground.  The video footages were adduced with her counsel’s consent who accepted at the trial that the video footage was showing the exhibition in 2010.  In fact, under, cross-examination the plaintiff admitted that the photograph exhibited to Madam Lo’s witness statement did reflect the set-up of the exhibition booth at the time of the accident, which showed the same features of the booth as in the video footages.

17. Second, the plaintiff alleged that the defendant’s doctor made certain mistake in the joint medical report dated 22 August 2015.  But the Judge found that the doctor did not make the mistake as alleged.  The plaintiff claimed that her condition continued to get worse.  However, even if this is the case, it does not concern the issue of liability and does not assist her on her appeal against the Judge’s finding on liability.

18. Finally, the plaintiff alleged that the white strip on the platform as shown in the photograph referred to in paragraph 16 above was fabricated.  But as pointed out by the Judge, the “white strip” was the concealed light, and at trial there was no dispute that the platform was built with a concealed light.  The dispute at trial was only whether the concealed light was turned on or was it off at the time of the accident.  The Judge made a factual finding that the light was on.  The plaintiff has no basis to support her allegation of fabrication.

19. In essence, the plaintiff is seeking to challenge the various findings of fact made by the Judge, but has failed to meet the high threshold of showing the Judge was plainly wrong in his findings. There is simply no substance in any of her grounds of appeal.

20. The plaintiff in her affirmations supporting the application for leave to appeal out of time raised two new matters, namely, (1) she was constantly followed by the detectives engaged by the defendant in 2015 and as a result she suffered from depression; and (2) she was mentally confused at the trial.  The first matter is irrelevant to her present application.  The second matter, if true, ought to have been raised at trial so that the Judge could deal with it.  It is too late to raise it on appeal.

21. In her affirmations, the plaintiff also sought to rely on certain fresh evidence.  The Judge has already refused to grant her leave to do so.  And she has not obtained or applied for leave from us either.  Absent the requisite leave, we will not allow her to rely on the fresh evidence.  In any event, even if there were an application to adduce the fresh evidence, we agree with the Judge that the conditions in Ladd v Marshall [1954] 1 WLR 1489 were not satisfied and we would have refused to grant leave.

22. The plaintiff has failed to show that her appeal has any reasonable chance of success, let alone real prospect of success.  Nor is there any other reason in the interests of justice why the appeal should be heard.  The application for leave to appeal out of time is refused.  As the application is entirely without merits, we order under Order 59 rule 2A(8) of The Rules of the High Court, Cap. 4A that no party may under rule 2A(7) request our determination to be reconsidered at an oral hearing inter partes.

Summons for production against the Council

23. As the application for leave to appeal out of time is refused, the summons for order of production of documents against the Hong Kong Trade Development Council is academic.  In any event, we would dismiss it for two reasons.  First, it is misconceived as the Council is a non-party to the proceedings below or this appeal.  The plaintiff has not made out any case for discovery against a non-party.  Second, the application should have been made much earlier for the purposes of the trial.  Appeal is not an occasion for trying the case afresh.  The plaintiff would also not have been able to satisfy the 1^st and 2^nd conditions in Ladd v Marshall for adducing by way of fresh evidence the documents she seeks to discover from the Hong Kong Trade Development Council.

Conclusion

24. Costs should follow event.  We order the plaintiff to pay the defendant the costs of the two applications.  The defendant is directed to lodge and serve a statement of costs for summary assessment within 14 days from the date of this Judgment.  The plaintiff is to lodge and serve a statement of objection, if any, and limited to 2 A-4 pages, within the next 14 days.  We will then summarily assess the defendant’s costs on proper.