CHAN SAU LAN v. CHESTERTON PETTY LTD

cacv 363/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 363 of 2004

(on appeal from HCPI NO. 1123 of 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  I agree with the reasons for judgment of Le Pichon JA.

Hon Stock JA:

2.  I agree with the reasons provided by Le Pichon JA.

Hon Le Pichon JA:

3.  This was an appeal on quantum from the judgment of Deputy High Court Judge Saunders dated 3 November 2004 in a personal injuries claim by the plaintiff who had sustained injuries in the course of her employment.  At the conclusion of the hearing, the appeal was dismissed with costs.  Written reasons were to be handed down later which we now do.

4.  The nub of the appeal was that the judge had erred in disregarding “documentary evidence” from Ms Florence Kwok, a clinical psychologist employed by the Hospital Authority.  In particular, it was said that the judge had ignored a report dated 21 July 2004 (“the July report”) being the third report prepared by Ms Kwok.

5.  At the outset of the appeal, the court inquired of Mr Mui, counsel for the plaintiff, as to the status of the July report.  Initially, Mr Mui informed the court that the defendant had agreed to the truth of the contents of the July report without calling the maker.  That was disputed by counsel for the defendant who referred the court to certain passages in the transcript.  These showed that the existence of the report was disclosed for the first time on 2 August 2004 during the cross-examination of Dr Leung who was one of the expert witnesses called by the plaintiff.  As noted above, the July report is dated 21 July, only several days before the commencement of the trial.  As Ms Kwok was apparently overseas at the time and had not given permission for it to be released, the judge made an order dated 3 August 2004 for the production of that report by the Hospital Authority, Castle Peak Hospital.  In due course, a copy was provided to the defendant’s solicitors.  The trial resumed on 31 August 2004 when one of the defendant’s expert witnesses, Dr Frendi Li gave evidence.  Dr Li commented on the inconsistent results produced by the three reports of Ms Kwok.  In cross-examination (at page 88 of the transcript), she referred to the lack of interpretation of the inconsistencies.  It emerged from Dr Li’s evidence that the inconsistencies were relevant against the plaintiff. 

6.  Mr Mui’s case was that the July report was part of the evidence before the judge.  However, Mr Mui could not refer this court to any part of the transcript in support of his assertion that the July report had been “agreed” by the defendant, that is to say as to the truth of its contents.  He also accepted that no order had been made making the July report part of the evidence in the trial.  He further acknowledged that no hearsay notice had been served by the plaintiff in respect of the July report.  Eventually, Mr Mui had to concede that there had been no agreement as to the truth of the contents of the July report but only as to authenticity.

7.  Mr Mui stressed that (1) the July report had formed part of the trial bundle; (2) the defendant’s legal representatives had never objected to it and (3) he was taken by surprise when, during the evidence of Dr Li, adverse comments were made about the inconsistencies contained in Ms Kwok’s reports.  But mere inclusion of a document in the trial bundle does not alter its status.  Unless the July report had become part of the evidence in the trial, whether by calling the maker or by agreement or by an order to that effect, it is wholly irrelevant that the defendant knew of its existence and had made no objection to it.  If Mr Mui had been taken by surprise during the evidence of Dr Li, it was plainly open to him there and then to apply for an adjournment on the basis that those inconsistencies had become a matter of some significance for the first time and that he therefore wished to call the maker of the July report to deal with those inconsistencies.  But that was never done.

8.  The appeal was plainly doomed to failure from the start since the entire appeal hinged on the July report being part of the evidence in the trial which it was not.