MOHAMMAD AMJAD v. JOHN M PICKAVANT & CO

HCPI 100/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 100 OF 2009

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DECISION

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I.  ACCIDENT

1.  The plaintiff, a former litigation manager of the defendant firm, claims that when he passed through the reception area of the defendant’s offices (“Office”) on 1 March 2006, he tripped over a A4 size paper box left unattended on the floor, lost balance, and fell onto the reception table which collapsed.  As a result, he fell over onto the floor, and injured his neck, back, right thigh and right wrist (“Accident”).

II.  DCEC 1789/2006

2.  On 29 December 2006, the plaintiff herein as applicant issued an Application (“EC Application”) in DCEC 1789/2006 (“EC Action”) to claim employees’ compensation (“EC”) against the defendant herein as respondent.  In this Decision, the applicant and the respondent in the EC Action are respectively referred to as the plaintiff and the defendant. On 29 February 2009, the defendant filed their Re-Amended Answer (“EC Answer”).

3.  On 20 July 2007, the plaintiff was examined by his orthopaedic expert Dr Arthur Chiang (“Dr Chiang”), who prepared two expert reports dated 8 October 2007 and 4 May 2008 respectively (“Chiang 1^st and 2^nd Reports”).  On 7 August 2007, the plaintiff was examined by the defendant’s orthopaedic expert Dr Lau Hoi Kuen (“Dr Lau”), who prepared an expert report on 7 December 2007 (“Lau Report”).

4.  At the trial of the EC Action (“EC Trial”), the plaintiff, his wife Begum Waheda (“Wife”) and Ishtiaq Hussain (“Mr Ishtiaq”) gave evidence for the plaintiff, and Young Chung Pui Patrick (“Mr Young”), Chan Sze Nga Eva (“Ms Chan”) and Lam Wai Nga (“Ms Lam”) gave evidence for the defendant.

5.  Iftikhar Hussain gave a witness statement dated 2 February 2008 on behalf of the plaintiff, and John Michael Pickavant (“JMP”) served three witness statements dated 26 October 2007, 20 August 2008 and 3 February 2009 respectively.  But neither of them gave oral evidence at the EC Trial, so their witness statements were not adduced as evidence (see pages 249G-U and 331S of the transcript of the EC Trial and paragraph 30 of the judgment referred to in the paragraph below).  In the circumstances, the assertion in Revised Section B of the index to the hearing bundle before me (“Hearing Bundle”) that such witness statements “have been adduced as evidence without calling the makers” is incorrect.

6.  After 6 days of trial on 11 May 2009, HH Judge Chow (“EC Judge”) adjudged that the defendant shall pay EC to the plaintiff in the sum of HK$1,825,841.50 with interest and costs (“EC Judgment”).

7.  On 25 May 2009, the defendant filed Notice of Appeal against the EC Judgment in CACV 128/2009 (“EC Appeal”).  On 8 March 2010, the EC Appeal was dismissed with costs pursuant to the defendant’s Request for Dismissal of Appeal.

III.  PRESENT PROCEEDINGS

8.  On 13 February 2009, the plaintiff commenced the present proceedings against the defendant (“PI Action”) to claim damages for personal injuries and other loss and damages as a result of the Accident, which he claims were caused by the defendant’s negligence, breach of employment contract, breach of common duty of care and/or breach of statutory duty.

9.  On 18 August 2009, the plaintiff was jointly examined by Dr Chiang and Dr Lau (collectively, “Ortho Experts”) who prepared a joint report dated 27 September 2009 (“1^st Ortho Jt Report”).

10.  On 30 April 2010, the defendant filed their Defence (“Defence”).  For the purpose of the PI Action and in conformity of the EC Judgment, the defendant in the Defence admits that on 1 March 2006 the plaintiff tripped over an A4 size paper box in the reception area of the Office and suffered injuries, but they aver that the Accident was solely caused or contributed to by the plaintiff’s negligence.  In the Defence, the defendant also denies the plaintiff’s alleged injuries, loss and damage, and further claims that the plaintiff grossly exaggerated the effect of his injuries.

11.  On 16 November and 29 December 2010, the plaintiff and the defendant respectively filed the Revised Statement of Damages (“RSOD”) and the Answer thereto (“Answer”).

12.  For the PI Action, the plaintiff served inter alia his two witness statements as to fact dated 17 June and 22 November 2010 respectively (“MA 1^st and 2^nd Statements”) and a witness statement by the Wife dated 17 June 2010, and the defendant served inter alia the following witness statements as to fact by:

(a)  JMP dated 22 June and 29 December 2010 respectively (“JMP 1^st and 2^nd Statements”);

(b)  Mohammad Mustafa (“Mr Mustafa”) dated 13 September 2010;

(c)  Hu Ka Lee Raymond (“Mr Hu”) both dated 14 September 2010;

(d)  Hussain Rongzaib (“Mr Rongzaib”) both dated 14 September 2010;

(e)  Ahmed Nasir (“Mr Nasir”) dated 13 and 17 September 2010;

(f)   Wong Wai Tak Bill (“Mr B Wong”) dated 17 September 2010.

13.  On 7 June 2011, the plaintiff issued an inter partes summons (“Summons”):

(a)  to strike out and/or expunge/exclude from the trial of the PI Action (“PI Trial”) parts of certain statements, evidence and/or documents served or discovered by the defendant on the ground that they are inadmissible as being scandalous, irrelevant and/or otherwise oppressive;

(b)  to seek leave to consequentially amend the MA 2^nd Statement in the manner marked in red as per the draft annexed thereto.

14.  On 7 June and 21 July 2011 respectively, the plaintiff filed 2 affirmations of his solicitor Cheung Kwai Nang (“Mr KN Cheung”) in support of the Summons (“Cheung 1^st and 2^nd Affirmations”).  On 4 July 2011, the defendant filed the affirmation of their solicitor Wong Tommy Ki Man (“Mr T Wong”) in opposition (“Wong 1^st Affirmation”).

15.  On 13 June 2011, I adjourned the Summons for argument.  On 14 June 2011, the Ortho Experts compiled their supplemental joint orthopaedic expert report (“2^nd Ortho Jt Report”).  The adjourned hearing for argument in respect of the Summons came before me on 16 September 2011 (“1^st Hearing”).

16.  At the 1^st Hearing, I asked Mr Shum, counsel for the plaintiff, whether and if so when the plaintiff would raise the matter of issue estoppel based on the EC Judgment as alluded to in the Wong 1^st Affirmation (see paragraph 40 below) since it appeared to be a live area of dispute between the parties.  In any event, there was insufficient time at the 1^st Hearing to dispose of the Summons.  Consequently, I adjourned the part-heard Summons and directed the plaintiff to consider whether to take out any striking out application on the ground of issue estoppel.

17.  On 11 October 2011, I granted leave for the plaintiff to amend the Summons by inter alia adding a striking out application on the ground of issue estoppel, and the Amended Summons was filed on 13 October 2011 (“Amended Summons”).  On 4 November 2011, the defendant filed Mr T Wong’s 2^nd affirmation in opposition (“Wong 2^nd Affirmation”).  The Amended Summons was restored for continuation of the part-heard hearing before me on 21 February 2012 (“2^nd Hearing”).

18.  At the 2^nd Hearing, without objection from Mr Wong, counsel for the defendant, I granted leave for the plaintiff to re-amend the Amended Summons to correct an inadvertent omission.  Such Re-Amended Summons filed on 30 April 2012 (“Re-Amended Summons”) sought inter alia the following reliefs:

(a)  (as already provided for in the Summons) to strike out and/or expunge/exclude from the PI Trial parts of certain statements, evidence and/or documents served or discovered by the defendant on the ground that they are inadmissible as being scandalous, irrelevant and/or otherwise oppressive;

(b)  to strike out and/or expunge/exclude from the PI Trial parts of the Answer and the JMP 1^st Statement on the ground that they are inadmissible as being scandalous, irrelevant and/or otherwise oppressive;

(c)  to strike out and/or expunge/exclude from the PI Trial parts of certain pleadings, statements, evidence and/or documents on the ground of issue estoppel (ie the matters therein have been determined by the EC Judge as findings in the EC Action so that it would be an abuse of process to re-litigate the same issues again in the PI Action between the same parties);

(d)  (as already provided for in the Summons) to seek leave to consequentially amend the MA 2^nd Statement in the manner marked in red as per the draft annexed thereto;

(e)  to seek leave to consequentially amend the MA 1^st Statement in the manner marked in red as per the draft annexed thereto.

19.  On 7 February 2012, the plaintiff issued an inter partes summons for leave to file and serve Mr KN Cheung’s 3^rd affirmation in support of the Re-Amended Summons.  Mr Wong had no objection, and on 22 February 2012 the plaintiff filed such affirmation (“Cheung 3^rd Affirmation”) pursuant to my order.

IV.  RE-AMENDED SUMMONS

20.  It is necessary to start by identifying the precise scope and ambit of the broad range of matters under the Re-Amended Summons.  Tables A, B and C annexed to this Decision (“Tables A, B and C”) set out the impugned pleadings, statements, evidence and/or documents which the plaintiff claims are inadmissible at the PI Trial:

(a)  as being scandalous, irrelevant and/or otherwise oppressive (Table A) (“Inadmissibility Application”);

(b)  as being subject to issue estoppel (Table B) (“Issue Estoppel Application”);

(c)  consequent upon any order in favour of the plaintiff under (a) and/or (b) above (“Consequential Application”).

In this Decision, I shall refer to the criminal proceedings under KTCC 713/2007 in item 6 of Table A as “Criminal Trial”, the undercover surveillance video recordings in item 7 of Table A collectively as the “Recordings”, and the transcript thereof in item 8 of Table A as the “Recordings Transcript”.

V.  EC ACTION

21.  In the EC Application, the plaintiff claims that the Accident happened as described in paragraph 1 above, and that he suffered 5 mm superficial wound over the volar side of the right wrist and 5 cm laceration wound over the inner aspect of his right thigh. He further claims to have sprained his neck and back.  He says that the right wrist was injured by a paper cutter, and such injury was complicated by reflex sympathetic dystrophy syndrome.  The plaintiff also avers that his average monthly earnings during the 12 months (or any lesser period of employment with the defendant) prior to the Accident was HK$32,500.00.

22.  In the EC Answer, the defendant denies the plaintiff’s claim by saying (for reasons set out below) that the Accident was contrived, and further denies the plaintiff sustained injuries to his right wrist, right thigh, neck and back or at all:

(a)  After the alleged Accident, JMP suspected the plaintiff had on various occasions embezzled the defendant’s money, which embezzlement/theft took place between October 2005 and February 2006 and involved more than HK$100,000.00.

(b)  In at least four previous incidents the plaintiff allegedly sustained injuries whilst employed by other employers and secured EC without any assessment by the medical board.

(c)  In respect of the alleged Accident, the plaintiff’s wrist injury was not apparent when he first attended the accident and emergency department (“AED”) of Pamela Youde Nethersole Eastern Hospital (“PYNEH”).  PYNEH was not the nearest hospital in relation to the Office in Mongkok, but the plaintiff had arranged for a car to wait downstairs to pick him up immediately after the Accident. JMP went to PYNEH and saw the plaintiff (who had changed into a hospital robe with his arms exposed) holding a mobile phone with his right hand.  During the half hour when JMP was with the plaintiff, he did not notice any blood or cut on the plaintiff’s right wrist. Indeed, after the plaintiff had left the Office, Mr Young checked the scene of the alleged Accident and did not notice any obstacle (eg A4-size paper box or sharp object) or blood.  “Neither did he see any blood on [the plaintiff’s] clothing when he was lifting his right arm or at any time thereafter.”

23.  The statements of those witnesses who gave evidence in the EC Trial (see paragraph 4 above) and those who did not (see paragraph 5 above) have been included in the Hearing Bundle, but neither Mr Shum nor Mr Wong have referred me to their contents.  In line with counsel’s assurance set out in paragraph 45 below, I make no further reference to them for the purpose of the Re-Amended Summons.

VI.  EC JUDGMENT

24.  In the EC Judgment, the EC Judge found for the plaintiff.  He also made findings on various allegations/submissions raised by defence counsel (who was also Mr Wong) in support of the contention that the plaintiff inflicted the injuries on his own body, and he concluded at paragraph 29 of the EC Judgment as follows:

“No doubt the Respondent had a lot of suspicious about the cause of the Applicant’s injuries. But these suspicions can be explained away. There is simply no evidence to support its allegation that the Applicant self-inflicted the injuries on his body. I dismiss all the suspicions and find that the Applicant did suffer the above-mentioned injuries in the course of his employment with the Respondent.”

25.  On the issue of quantum, the EC Judge held that the plaintiff’s average monthly earnings were HK$32,500.00 (see paragraph 30 of the EC Judgment), and made findings of fact as to the main duties of the plaintiff who worked as the defendant’s litigation manager prior to the Accident (see paragraph 31 of the EC Judgment) and the plaintiff’s work-related disabilities/impairments after the Accident (see paragraphs 31-32 of the EC Judgment).  The EC Judge agreed with the Lau Report that the plaintiff would not be able to cope with the demands of his pre-Accident duties, and could not return to such work.  He then went on to assess EC under section 9(1A) (on the Paper Mills formula), section 10 and section 10A of the Employees’ Compensation Ordinance Cap.282 (“ECO”) (see paragraphs 33-39 of the EC Judgment).

26.  I do not propose to deal with here (a) the particular arguments raised by defence counsel and dismissed by the EC Judge and/or (b) the particular factual and/or other findings in the EC Judgment since these matters will be canvassed in more detail below when I consider the Inadmissibility and Issue Estoppel Applications.

VII.  PLEADINGS IN THE PI ACTION

27.  In the RSOD, the plaintiff pleads in relation to his injuries, treatment and disabilities inter alia as follows:

(a)  Immediately after the Accident, the plaintiff was taken to PYNEH’s AED for medical examination and treatment.  He was found to have a 5 cm superficial laceration over the right anterior thigh, diffuse tenderness over the lower back and swelling over the right shoulder.  He was admitted to the orthopaedic ward for further management.  Physical examination revealed a 5 mm superficial wound over the volar side of the right wrist.  The sensation over the right palm and radial 3 digits were decreased, and the motor function of his right hand could not be tested because of pain.  Exploration of the wound over the right wrist showed that the palmar branch of the right median nerve was cut, but the main trunk of the nerve was intact.  There was a 5 cm laceration wound over the inner aspect of his right thigh and a superficial laceration wound over his right thigh. His neck was diffusely tender and stiff.  The palmar branch of the median nerve was repaired and the wounds were sutured.  He was given a short arm slab for protection of the repaired nerve and was discharged on 3 March 2006.

(b)  The plaintiff attended follow up at the orthopaedic clinic.  The clinical impression was reflex sympathetic dystrophy syndrome.  He was admitted to the orthopaedic ward on 6 June 2006 for further examination.  Nerve conduction test was attempted but failed because he could not tolerate it.  Bone scan was done on 12 June 2006 which showed signs of reflex sympathetic dystrophy syndrome.  He was discharged on 14 June 2006, and received further physiotherapy and occupational therapy at the outpatient clinic.

(c)  On 24 January 2007, the plaintiff was admitted to PYNEH’s orthopaedic ward for contracture of right wrist and carpal tunnel syndrome.  Release of the carpal tunnel and relaxation of the scar and web contracture of the skin were performed on the following day.

(d)  According to the Lau Report, Dr Lau assessed the plaintiff to suffer 31% whole person impairment with severe functional impairment of his dominant right hand, which gave rise to great problems in his work at the office (including writing, operating keyboard or handling files), but he should be able to work as an interpreter.  Dr Lau opined that the prognosis for the plaintiff’s right hand was poor, and further significant improvement in the functionality of the right upper limb was unlikely.  The plaintiff would be left with severe impairment in the function of his dominant upper limb in terms of poor dexterity, strength and sensation.  Whilst no further treatment can improve the function of the plaintiff’s right upper limb, further deterioration was not expected.

28.  In the RSOD, the plaintiff further pleads in relation to his claims for loss of earnings and loss of earning capacity inter alia as follows:

(a)  At the time of the Accident, the plaintiff worked as the defendant’s litigation manager and earned HK$32,500.00 per month.  His then duties included marketing, sourcing new clients, taking instructions from clients, preparing claim papers, and assisting in the preparation of cases.  As a result of the Accident, the plaintiff was unable to return his pre-Accident employment.

(b)  After termination of his sick leave, the plaintiff was only able to secure employment with The Firm Limited (“TFL”) as general manager handling employees’ disputes from November 2007 to July 2008 earning a total income of HK$5,000.00.  Since 4 November 2008 the plaintiff worked as an interpreter for Messrs KB Chau & Co (“KBC”) at a monthly salary of HK$3,000.00.

29.  On 14 May 2010, the plaintiff filed his Reply to Request for Further and Better Particulars of the Statement of Damages to plead the following matters:

(a)  he was still employed by KBC;

(b)  his work for KBC was provision of interpretation service to clients as required;

(c)  his total salary earned from his employment with KBC from November 2008 to April 2010 was HK$51,000.00 (ie HK$3,000.00 x 17 months);

(d)  he had no other employment whilst so employed by KBC.

30.  On 16 August 2010, the plaintiff filed his Answer to Interrogatories without Order stating that his monthly income since November 2008 (including income from his employment with KBC) was HK$3,000.00, and he did not have any other income.

31.  In the Answer to the RSOD, the defendant avers in respect of the plaintiff’s alleged injuries, treatment and disabilities inter alia as follows:

(a)  The defendant does not admit that the plaintiff sustained a 5 mm cut on his right wrist and a 5 cm laceration on his right thigh as a result of the Accident.  “If there was a genuine accident, the [plaintiff] sustained only very minor or no significant injuries. He was observed to be leaving the [defendant’s] office building with no discomfort, and he boarded his car and drove to PYNEH at Hong Kong eastern, when the [Office] was in Mongkok.  It is also denied that he had a 5 mm wound on his right wrist at the time of his admission to the hospital” (paragraph 2 on page 2).

(b)  Although Dr Lau in the Lau Report agrees that in June 2006 the plaintiff was having “all clinical results of compression regional pain syndromes (CRSP I) and that he was still having symptoms of persistent compression of the median nerve”, he also raises doubt about the injuries to the plaintiff’s right wrist as set out in more detail in the Lau Report (paragraph 3 on page 2).

(c)  At their joint examination on 18 August 2009, the Ortho Experts noted significant improvement in the plaintiff’s condition including (i) absence of muscle wasting of the right arm and forearm, (ii) lesser degree of wasting of the muscles of the right hand, (iii) increased mobility of the right thumb, index and middle finger, and (iv) almost complete absence of positive signs of CRPS I, and they agree there were signs of symptom magnification and exaggeration.  They further opine that the plaintiff should be having only mild moderate degree of impairment of his right upper limb.  He should have largely recovered from the soft tissue injury to his neck, and the prognosis is good.  The Ortho Experts agree that the plaintiff should be able to return to his work with only mild moderate problems (paragraph 4 on pages 2-3).

32.  In the Answer, the defendant further pleads in relation to the plaintiff’s alleged loss of earnings and loss of earning capacity inter alia as follows:

(a)  Although the plaintiff was employed as the defendant’s litigation manager at the time of the Accident, “his work was generally interpretation and sourcing of clients.  He was [then] earning a fixed basic salary of $20,000” (paragraph 4 on page 3).

(b)  Around Chinese New Year in 2006, due to the defendant firm’s good performance, discretionary bonuses were given to staff members, ie HK$150,000.00 to each of the plaintiff, Mr Young and Alan Cheung, and HK$10,000.00 to Candy Tong.  “It is not admitted that such bonus formed part of the [plaintiff’s] regular income” (paragraph 5 on page 3 and paragraph 6 on page 4).

(c)  On 11 March 2006, the plaintiff returned to the Office and was involved in a quarrel with JMP to such an extent that JMP had to call the police and security staff.  The plaintiff then left the Office and never returned.  He was not dismissed by the defendant for his abilities in performing his work (paragraph 7).

(d)  The defendant avers that even without the Accident they would have dismissed the plaintiff in/about April 2006 due to his deliberate misconduct and/or dishonesty.  The defendant discovered around that time that the plaintiff had been involved in certain acts of dishonesty involving client’s money.  JMP reported to the police and gave a statement on 13 April 2006 (paragraph 8).

(e)  The defendant further avers that the plaintiff “would have been dismissed not later than 1^st April 2006 for such dishonesty”, which includes (i) paying client’s money into various bank accounts, including the joint account of the plaintiff and the Wife and the account of the plaintiff’s mother-in-law, and then withdrawing those monies, and (ii) falsely representing to the client that the defendant required him to pay additional handling monies when no such demand had been made by the defendant (paragraph 8).

(f)   The defendant therefore claims that the plaintiff’s “loss of income at the [defendant’s] firm was not due to any effect of the alleged injuries” (paragraph 9).

(g)  The plaintiff left the defendant’s employ after the confrontation on 11 March 2006, but he would have been dismissed anyway for deliberate misconduct and/or dishonesty, so he would have had to look for a job in the open market in any event (paragraph 10).

(h)  The plaintiff’s job did not require much use of his right hand, so any difficulties he had in looking for work after he left the defendant would not be due to the effects of his alleged injuries (paragraph 11).

(i)   The defendant relies on the surveillance materials which show that the plaintiff should have no difficulty in performing his work for KBC, which work is similar to what he was doing whilst under the defendant’s employ (paragraph 12).

(j)   The defendant avers that for the above reasons the plaintiff is not entitled to claim any future loss of earnings, and he suffers no disadvantage in the labour market due to the minimal effect of his injuries.  Alternatively, if there is any disadvantage, he will be adequately compensated by a global sum of HK$50,000.00 (paragraphs 13-14).

VIII.  AFFIRMATION EVIDENCE BY THE DEFENDANT

33.  The Wong 1^st Affirmation acknowledges that notwithstanding the defendant’s belief that the Accident was contrived and most of the plaintiff’s injuries were not caused by the Accident, the matter of the Accident has already been canvassed in the EC Action in which the EC Judge has ruled in favour of the plaintiff.  Hence, on the issue of liability in the PI Action, “the [defendant’s] main defence …… is simply that of contributory negligence”, and such major dispute will turn on the credibility of the plaintiff.

34.  On the issue of quantum, the defendant by the Wong 1^st Affirmation acknowledges that at the time of the Accident the plaintiff’s basic monthly income was HK$20,000.00, but they deny that the plaintiff was entitled to be paid “commission” on cases he introduced to the defendant.  In this respect, the defendant does not dispute they paid a lump sum of HK$150,000.00 to the plaintiff in February 2006 (ie about a month before the Accident), but claims it was a special “bonus” due to the firm’s good performance.  Indeed, other staff members also received lump sums ranging from HK$10,000.00 to HK$150,000.00.  The Wong 1^st Affirmation notes that the plaintiff was not a qualified person within the meaning of the Solicitors’ Practice Rules Cap.159H (“SPR”), and the defendant could not legally give him any commission.

35.  The defendant claims that whilst the plaintiff was under their employ his work was basically that of an interpreter, and he was not allowed to draft any document and was not required to type or use the computer.  His main job was to do interpretation.  According to the Wong 2^nd Affirmation, the defendant’s case is that the plaintiff exaggerated his injuries, and he was in fact capable of performing most of his pre-Accident duties.  The defendant says that the plaintiff’s claim of being only able to earn HK$3,000.00 per month working for KBC is a gross exaggeration.

36.  The Wong 1^st Affirmation asserts that shortly after the Accident (ie on 11 March 2006) the plaintiff returned to the Office and was involved in a quarrel with JMP.  The plaintiff was removed from the Office by the police.  He never returned to work again, so his employment with the defendant was effectively at an end.

37.  Further, according to the Wong 2^nd Affirmation, it is the defendant’s case that even without the Accident still they would have dismissed the plaintiff for his pre-Accident deliberate misconduct, dishonesty and/or misbehavior (but not for any disability in performing his duties), which would have affected his ability to find similar employment in the legal field.  Hence, the plaintiff would not have been able to earn as much as he suggested.

38.  In light of the above, Mr T Wong suggests that the main disputes on the issue of quantum in the PI Action (which also turns on the credibility of the plaintiff) are inter alia as follows:

(a)  the amount of the plaintiff’s average monthly earnings at the time of the Accident;

(b)  the plaintiff’s earning ability/income before and after the Accident, particularly whether the nature of his pre- and post-Accident work is different and whether he was/is required to do any drafting or use the computer;

(c)  whether the plaintiff’s alleged present monthly earnings are HK$3,000.00;

(d)  whether the plaintiff would have been dismissed by the defendant for his pre-Accident deliberate misconduct, dishonesty and/or misbehaviour in any event.

39.  The Wong 1^st Affirmation suggests that “all materials relevant to the [plaintiff’s] credibility as a witness [including those in items 1-23 of Tables A, B and C] should be before the Court for consideration”.

IX.  AFFIRMATION EVIDENCE BY THE PLAINTIFF

40.  The Cheung 1^st Affirmation claims that on the principle of issue estoppel the defendant in the PI Action cannot dispute matters being the subject of findings in the EC Judgment.

41.  Mr KN Cheung accepts that the credibility of the plaintiff and JMP as witnesses at the PI Trial is relevant for determining the issues of contributory negligence and quantum of damages, but the matters specified in Tables A, B and C are wholly unrelated to the Accident and not relevant to the PI Action.  The PI Action should be a civil trial of issues put before the court and not a trial of the plaintiff’s character.  Further, it is a general rule of evidence that a party cannot adduce documentary or oral evidence to advance an irrelevant case only for the purpose of discrediting the other party or witnesses.  Mr KN Cheung suggests that the inclusion of such irrelevant and unsubstantiated evidence will lead to and result in mini-trial on irrelevant incidents/matters thereby unduly lengthening the PI Trial, and it will also prejudice a fair trial since such matters are scandalous and oppressive.

42.  I shall deal with what Mr KN Cheung has to say on the impugned items in Tables A, B and C when I consider the Inadmissibility, Issue Estoppel and Consequential Applications below.

X.  MISCELLANEOUS MATTERS

43.  Before I turn to the Inadmissibility and Issue Estoppel Applications, I shall quickly deal with a few miscellaneous matters.

44.  Pages 79-81 in Section B of the Hearing Bundle, which appears to be a copy Chinese statement given by Singh Jagraj to the police on 11 April 2006, are illegible.  Mr Shum and Mr Wong agree that I can refer to the English translation of such statement at pages 82-85 of the same section in the Hearing Bundle and ignore the illegible pages.

45.  Part E of the Hearing Bundle contains copies of the orthopaedic expert reports on the plaintiff, ie the Chiang 1^st and 2^nd Reports, the Lau Report, and the 1^st and 2^nd Ortho Jt Reports.  Part F of the Hearing Bundle contains the transcript of the EC Trial.  Despite invitation by the court to refer to these documents, Mr Shum and Mr Wong in the course of their submissions have only made limited reference to Part E but not Part F at all.  Both counsel have assured me that I need not refer to any part of the Hearing Bundle to which they have not made express reference in the course of their submissions.

46.  I have not been provided with CD/DVD copies of the Recordings.  Mr Shum and Mr Wong agree that it is sufficient for me to refer to Recordings Transcript and that I need not view the Recordings for the purpose of the Re-Amended Summons.  They further accept if I strike out the Recordings Transcript, it follows that the Recordings should also be struck out.

47.  Mr Shum and Mr Wong agree that the contents of the impugned parts of the statements (being discovered documents) and the corresponding witness statements in items 10-16 of Table B generally mirror each other, so they should stand or fall together.

48.  Whilst Mr Shum urges me to decide on the Inadmissibility and Issue Estoppel Applications now (and Mr Wong does not disagree since he maintains that the impugned pleadings, statements, documents and/or evidence are as admissible now as they will be at the PI Trial), both counsel agree that this court has discretionary power (to be exercised if considered appropriate in all the circumstances) to adjourn and reserve any impugned matter for consideration/determination by the trial judge as being a more appropriate forum.  I have invited counsel to address on this option, but Mr Shum and Mr Wong have not been enthusiastic.

XI.  LEGAL PRINCIPLES: STRIKING OUT

49.  The principles governing a striking out application are well established.  Para.18/19/4 of Hong Kong Civil Procedure 2012 Vol.1 at pp.415-416 provides that “…... [it] is only in plain and obvious cases that the court should exercise its summary powers to strike out” and “[it] is for the party seeking to strike out …… to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……”  Under Order 1B rule 1(2)(j) of the Rules of the High Court (“RHC”), the court under its general powers of management may exclude an issue from consideration.

XII.  LEGAL PRINCIPLES: SCANDALOUS AND OPPRESSIVE

50.  Under Order 18 rule 19(b) of the RHC, the court can order to be struck out any pleading or anything in any pleading on the ground that it is inter alia scandalous.  Under Order 41 rule 6 of the RHC, the court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive (see Chan Woon Fui v Chan Wing Suen & ors HCCW 350/2004, Barma J (unreported, 11 July 2005) at para.4).

51.  The court also has general jurisdiction to strike out or expunge any scandalous matter in any record or proceeding.  Hong Kong Civil Procedure 2012 Vol.1 para.18/19/7 at p.417 provides that:

“Allegations of dishonesty, immorality and outrageous conduct, etc, are not scandalous and cannot be struck out, if relevant or necessary to any issue in the action. …… “The sole question is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the [pleading] which is material with reference to the relief that is prayed” ……

This rule applies no matter how grave the allegation, so long as it is material to the issue.  If, however, the degrading, indecent or offensive charges are made which are irrelevant or are for the sole purpose of abusing or prejudicing the other party …… the pleading becomes scandalous and liable to be struck out.

……

If any unnecessary matter in a pleading contains any imputation on the opponent, or makes any charge of misconduct or bad faith against him or anyone else, it will be struck out, for it then becomes scandalous. ……”

(see also Wong Luen Hang & anor v Chan Yuk Ling & ors HCA 2654/2007, Fung J (unreported, 29 August 2008)).

XIII.  LEGAL PRINCIPLES: ISSUE ESTOPPEL

52.  A decision will create an issue estoppel if it determines an issue in a cause of action as an essential step in its reasoning.  Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment (see Spencer, Bower and Handley, Res Judicata 4^th ed para.8/01 at p.103 and Hoystead & ors v Commissioner of Taxation [1926] AC 155).

53.  In Thoday v Thoday [1964] P 181, 198, Diplock LJ said as follows:

“…… “issue estoppel,” is an extension of the same rule of public policy.  There are many causes of action which can only be established that two or more different conditions are fulfilled.  Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be causes where the fulfilment of an identical condition is a requirement common to two or more different causes of action.  If in litigation upon one such cause of action any such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.

But “issue estoppel” must not be confused with “fact estoppel,” which, although a species of “estoppel in pais,” is not a species of estoppel per rem judicatam.  The determination by a court of competent jurisdiction of the existence or non-existence of a fact, the existence of which is not of itself a condition the fulfilment was necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court.  It may not always be easy to draw the line between facts which give rise to “issue estoppel” and those which do not ……”

54.  A fuller statement is set out in Dixon J’s judgment in Blair v Curran (1939) 62 CLR 464, 531-533:

“ A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. …… in [issue estoppel], for the purpose some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. …… the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision is erroneous.

In the phraseology of Lord Shaw, “a fact fundamental to the decision arrived at” in the former proceedings and “the legal quality of the fact” must be taken as finally and conclusively established …… But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary matters and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.

The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. ……” (my emphasis)

55.  A more modern formulation is found in Lord Keith’s judgment in Arnold & ors v National Westminster Bank plc [1991] 2 AC 93, 105 as follows:

“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.”

56.  Mr Wong further submits (and Mr Shum does not disagree) that:

(a)  where there was no duty to raise an issue or raising it attracted some disadvantage, an adverse decision does not cover it (see Spencer, Bower and Handley, Res Judicata 4^th ed para.8.16 at p.112 and In re Koenigsberg [1949] Ch 221);

(b)  an issue estoppel cannot be enlarged by evidence, inference or argument (see Spencer, Bower and Handley, Res Judicata 4^th ed para.8.22 at p.115 and O’Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 763);

(c)  only determinations which are necessary for the decision and fundamental to it will create an issue estoppel, and other collateral determinations, however positive, do not (see Spencer, Bower and Handley, Res Judicata 4^th ed para.8.23 at p.115).

57.  For the proposition in (c) above, Mr Wong cites Fullagar J’s observation in Brewer v Brewer (1953) 88 CLR 1, 15 that “[issue estoppel] applies only as to issues.  There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue.  There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue” (my emphasis).

58.  In my view, there is little if any difference between such observation and that of Diplock LJ in Thoday (see paragraph 53 above) or Dixon J in Blair (see paragraph 54 above).  But it is equally important to note what Dixon J also said in Blair, ie issue estoppel is not confined to the final legal conclusion in the judgment but it concludes all matters which were necessary to decide and which were actually decided as the groundwork of the decision itself though not then directly the point at issue (see paragraph 54 above).  As succinctly put in Spencer, Bower and Handley, Res Judicata 4^th ed para.16.01 at p.305, “[issue] estoppels also cover issues which can be inferred were actually decided, and other questions fundamental to the earlier decision although, not then, on contention”.

59.  This is borne out by a local case not cited by counsel, Wan Chee Leung, a mentally incapacitated person by his next friend, Wen Zefen v Lam Ki Mau and Chan Chiu Yee trading as Tomson Construction Engineering Co HCPI 95/2006, Fung J (unreported, 8 February 2010).  In that case, the plaintiff did not give evidence at trial in earlier EC proceedings.  Although the defendant denied employment, the district judge rejected the evidence of the defence witnesses.  He relied on the Form 2 submitted to the Labour Department to find that the plaintiff suffered injury on duty when “clearing the site”, and made an award on the basis of 100% permanent disability.  The Court of Appeal upheld the decision saying that the district judge found “clearing the site” to include “cutting off protruding steel bars”.

60.  It was argued that since the necessary requirement for liability under section 5 of the ECO was personal injury by accident arising out of and in the course of employment caused to an employee, the mode of the accident was not a necessary finding for the award of compensation and therefore issue estoppel would not arise on the defendant’s proposed contention in the common law claim that the plaintiff was not clearing the site or alternatively cutting off protruding steel bars at the time of the accident.  Fung J held that since the Court of Appeal had dismissed the defendant’s appeal and affirmed the EC award on the basis that “clearing the site” included “cutting off protruding steel bars”, the latter was a necessary finding of fact in the EC proceedings as a whole, and even though subsequent expert medical evidence strongly suggested malingering on the part of the plaintiff, still it would not constitute exceptional circumstances to allow re-litigation on these matters.

61.  But Mr Wong goes further in his submissions.  He argues that even if a finding/determination was fundamental in an earlier proceeding, the court still needs to examine all circumstances to see whether it is just to apply issue estoppel in a later proceeding.  He cites Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111 in support of such proposition.

62.  However, as Mr Shum has made clear in his submissions, for the purpose of the Re-Amended Summons, the plaintiff only relies on issue estoppel in the narrow/classic sense, and not the wider or extended doctrine of issue estoppel based on abuse of process under Henderson v Henderson [1843-60] All ER Rep 378, Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & anor [1975] AC 581 and Ngai Few Fung.

63.  The distinction between the narrow/classic doctrine of issue estoppel and the extended Henderson doctrine has been made clear by Auld LJ in a helpful passage in Bradford & Bingley Building Society v Seddon Hancock & ors [1999] 1 WLR 1482, 1490-1491, which has not been cited by counsel but has been referred to with approval by Ma J (as he then was) in Ray Chen v Anita Wan Ching Lam & anor HCA 4582/2001 (unreported, 9 May 2002) at para.23:

“ In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the courts’ subsequent application of the above dictum[of Wigram VC in Henderson]. The former, in its cause of action estoppel form, is an absolute bar to relitigation, and in its issue estoppel form also, save in the “special cases” or “special circumstances”: see Thoday v. Thoday [1964] P. 191, 197-198 per Diplock L.J. and Arnold v National Westminster Bank Plc. [1991] 2 A.C. 93. The latter, which may arise where there is no cause of action or issue estoppels, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter. ……

……

Sir Thomas Bingham M.R. has recently underlined the distinction in Barrow v. Bankside Agency Ltd. [1996] 1 W.L.R. 257, 260:

“The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppels. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”” (my emphasis)

64.  In Arnold, Lord Keith recognised there might be “special circumstances” where issue estoppel would not operate.  Arnoldwas such a case.  In that case, there were subsequent judicial decisions which showed that the decision of the judge on the construction of a document was wrong.  The plaintiff therefore brought another action on the same subject matter, and the House of Lords affirmed that the estoppel did not apply (see also Wan Chee Leung at paragraph 60 above and Wong Wang Sum v Lee Kam Engineering Co (a firm) & anor [1996] 3 HKC 627, 633).

65.  I do not propose to canvass the factual matrices of the authorities cited by counsel in any detail.  Suffice to say that I have carefully considered such authorities and in particular Mr Wong’s written submissions on them, but I do not think they add further to the principles set out above.  After all, issue estoppel is always case-sensitive.  In my view, the essential elements of issue estoppel in the narrow/classic sense are:

(a)  there has already been a judicial decision by a competent court or tribunal;

(b)  the decision is final in character;

(c)  the issue in the later proceeding must relate to the same question decided or covered by the first;

(d)  the issue in the later proceeding is raised between the same parties or their privies.

XIV.  ISSUE ESTOPPEL: EC AND PERSONAL INJURY LITIGATION

66.  In my view, there is no reason why the doctrine of issue estoppel should not apply to personal injury litigation.  In Wong Wang Sum, the plaintiff commenced a common law claim for damages for personal injuries (ie eye injury, post-traumatic stress disorder and depression).  In earlier EC proceedings against the same defendants, the district judge found that the plaintiff was not suffering from post-traumatic stress disorder and his depression would not have long term incapacitating effect.  It was held in the common law proceedings that insofar as the plaintiff’s case on loss of earnings and loss of earning capacity was based on post-traumatic stress disorder and depression, it had been raised and determined in the EC proceedings and the matter ought not be re-litigated.  The common law claim insofar as it was based on the same subject matter ought to be struck out.

67.  Cheung J (as he then was) concluded that where identical questions had been raised in the earlier EC proceedings neither section 26 of the ECO or the nature of the subsequent proceedings (ie personal injury litigation) precluded the operation of issue estoppel.  He also found there were no special circumstances in which issue estoppel would not apply in that case, which was not one where there was some development in medicine not previously drawn to the attention of the district judge in the EC proceedings or where there were some aspects of the injury which could not be ascertained during the earlier proceedings.

68.  Whilst Mr Wong accepts that issue estoppel applies to personal injury litigation, he submits that the scope for any estoppel to arise from findings/determinations in earlier EC proceedings is limited given the different nature of the claims and the EC statutory regime that does not apply to personal injury claims.

69.  Section 5 of the ECO provides inter alia as follows:

“ (1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

……

(4) For the purposes of this Ordinance –

(a) an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;

   ……”

70.  Mr Wong submits that the deeming provision in section 5(4)(a) of the ECO creates a rebuttable legal presumption that shifts the burden of proving the causal link between accident and injury from the employee/ applicant to the employer/respondent.  Hence, the applicant is not duty bound to raise in the EC proceedings the matter of whether the injury “[had] arisen out of that employment”, and the respondent/defendant should not be estopped from disputing the assertion by the applicant/plaintiff in subsequent corresponding common law claim that the injury was caused by the accident.

71.  I disagree.  Irrespective of whether section 5(4)(a) of the ECO gives rise to any irrebutable legal presumption (which matter I need not determine) but assuming for the present purpose that it does, it still does not mean that the finding as to whether the injury “[had] arisen out of that employment” is not an essential step in the reasoning for the eventual EC award in favour of the employee/applicant.

72.  Section 5(1) of the ECO makes clear that the necessary ingredients for liability on the part of an employer to pay EC are (a) personal injury caused to the employee, (b) such personal injury was “by accident”, (c) the accident arose out of the employment, and (d) the accident occurred in the course of that employment.  Plainly, ingredient (b) is a fundamental (and not collateral) matter and a necessary element for granting any EC award.  However, section 5(4)(a) of the ECO is a deeming provision that goes to ingredients (c) and (d) rather than ingredient (b) above, or to put it in another way, it is concerned with whether there was “an accidentarising in the course of an employee’s employment” (my emphasis) and not whether the injury (as Mr Wong suggests) arose out of that employment.  In granting any judgment awarding EC payment, ingredient (b) must have been a particular issue forming a necessary element in the cause of action in the EC proceedings that have been litigated, or to put it in another way, it must have been a matter which was necessary to decide and which was actually decided as the groundwork of the decision itself.  In coming to this conclusion, I find comfort in the reasoning in Wan Chee Leung (see paragraphs 59-60 above).

73.  Mr Wong then refers to Bharwaney J’s observations in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, 622-623, to suggest there is a fundamental difference between a claim in negligence for damages at common law and a claim for compensation under the ECO, the latter of which requires an assessment of the loss of earning capacity to be made in accordance with the provisions of the ECO.  The learned judge said that subject to the provisions of section 9(1A) of the ECO, the EC payable is determined by arriving at a “base figure” to which percentage of loss of earning capacity either drawn from the fixed percentages in Schedule 1 or adjusted accordingly for non-scheduled injuries is applied (see also Lau Ho-wah v Yau Chi-biu [1987] HKLR 1062).

74.  In my view, one must be careful about the precise nature of the estoppel.  Where there is a judgment after trial in the earlier EC proceedings, issue estoppel comes into play in subsequent corresponding personal injury litigation between the same parties not from the statutory methodology for calculating the amount of EC payable, but from the findings/determinations by the District Court that were the essential steps in its reasoning for granting the EC Judgment.

75.  In fairness, I have referred counsel to Amjad v Wong Yui Cheong trading as Cheong Kee Transportation Company HCPI 943/2007, Mr Recorder Benjamin Yu SC (unreported, 21 April 2011).  In that case, the defendant admitted liability in the EC proceedings, and the district judge proceeded to assess the amount of EC payable under sections 9, 10 and 10A of the ECO.  The learned judge said as follows at para.8:

“In determining liability under the [EC] claim, the Court had to be satisfied that personal injury by accident arising out of and in the course of the employment was caused to the plaintiff: see s. 5 of the [ECO]. The Court would not be concerned with how the accident actually happened, and in particular, whether the accident was caused by the alleged negligence on the part of the defendant. The judgment of HH Judge Chan only recited the non-controversial background that the accident happened when the plaintiff was in the course of transporting the cartons of goods on the truck to a customer, and that the plaintiff was unable to stop the truck which collided into the concrete barrier. I am unable to accept Mr Wright’s submission that the judgment of HH Judge Chan gives rise to an estoppel against the defendant that the accident happened as described by the plaintiff, at least to the extent that any part of the plaintiff’s case on liability was controversial.” (my emphasis)

76.  In my view, had there been dispute as to how the accident happened and had the defendant not admitted liability in the EC proceedings, the situation in Amjad would have been different.  There would have been findings/ determinations on the issue of liability (including whether and how the accident happened) in the EC proceedings, and issue estoppel would have arisen as a result of such findings/decisions to preclude the defendant from re-litigating these fundamental matters for the purpose of resolving the issue on liability in the EC proceedings in any subsequent common law action.

77.  Indeed, Wan Chee Leung demonstrates that issue estoppel can prevent parties from revisiting findings/determinations on the issue of liability made in earlier EC proceedings in subsequent personal injury litigation (see paragraphs 59-60 above) (see also Sze Lai Man v The Wing On Department Stores (Hong Kong) Ltd [2001] 1 HKC 297).

78.  Likewise, in Yeung Pui Lap v Wong Siu Fai trading as Hung Fai Electric Company HCPI 1250/1998, Seagroatt J (unreported, 9 October 2000), a case not cited by counsel, the defendant contested earlier EC proceedings by claiming inter alia that the accident did not occur or did not occur as the plaintiff alleged.  He appeared at the trial of the EC proceedings and cross-examined the witnesses at length, but the district judge found the plaintiff to be wholly credible and rejected the defendant’s evidence on all issues.  The learned judge at paras.2-3 said as follows:

“ 2. …… [The district judge’s] findings are res judicata - or constitute issue estoppel in the respects which were contested. Her judgment has not been appealed. In this case it is not necessary for me to set out the authorities in support of the principle of issue estoppel (or res judicata) but they conveniently start with Wood v. Luscombe [1966] 1 QB p.169. The findings then, in this case, are that the accident did occur in the course of the Plaintiff's employment, that it occurred as he alleged, that there has been no compromise of his rights under the [ECO], and that the nature of the injuries was as he alleged.

3. In these circumstances it is strictly necessary for me only to decide whether the Defendant’s negligence caused the injury, whether there was any contributory negligence, and what the proper level of damages is under each head claimed.” (my emphasis)

79.  On matters of quantum, Mr Recorder Benjamin Yu SC in Amjad said as follows at para.9:

“Mr Wright is on stronger grounds when he sought to rely on the judgment of HH Judge Chan [in the EC claim] as constituting an estoppel against the defendant in respect of her finding as to the injuries which the plaintiff sustained as a result of the accident, and her finding that the plaintiff would not be able, by virtue of the injuries he sustained as a result of the accident, to return to his job before the accident. As noted above, the learned Judge had the benefit of medical evidence before her. It is also apparent from the judgment that the learned Judge had fully considered the evidence before her in coming to her conclusions. It would plainly be an abuse of process if the defendant were to be allowed to re-litigate the issues which have been fully canvassed at the [EC] claim. I accept that the defendant should be precluded by issue estoppel from raising any such challenge. ……”

80.  I have also referred the parties to my decision in Wan Chuen Hoi v Wing Shun Engineering Transportation Limited HCPI 530/2008 (unreported, 14 June 2011) in which I gratefully adopted the above observations in Amjad (see paras.10-15).  In Wan Chuen Hoi, the judgment in the corresponding EC proceedings made findings on inter alia the duration of the plaintiff’s employment with the defendant, the amount of his actual earnings during such period, and the amount of his average monthly income whilst so employed.  On the principle of estoppel, I accepted for the purpose of the plaintiff’s common law claim that his average pre-accident monthly earnings were in the amount as found by the district judge (see paras.39-40).

81.  In Wong Wang Sum (see paragraphs 66-67 above), it was held that insofar as the plaintiff’s case on loss of earnings and loss of earning capacity was based on post-traumatic stress disorder and depression, it had been raised and determined in the EC proceedings, so the matter ought to be struck out and not re-litigated.

82.  More significantly, in Poon Chi Kwong v Poon Wing Kee (Metal) (Work) & anor [2004] 2 HKC 684, a case not cited by counsel, Lam J stated at p.693 as follows:

“A determination of a claim under s 10 of the ECO [ie periodical payments] is a final determination involving final resolution of the issues in dispute that are relevant to the claim. As such, the findings and the decision of the court will have implications in terms of issue estoppel and res judicata (see Wong Wang Sum v Lee Kam Engineering Co (a firm) [1996] 3 HKC 627; Yeung Pui Lap v Wong Siu Fai (t/a Hung Fai Electric Co) (HCPI 1250/98, 9 October 2000, unreported); Sze Lai Man v The Wing On Department Stores (Hong Kong) Ltd [2001] HKC 297 (CFI). ……” (my emphasis)

83.  Indeed, in the reverse situation of an earlier judgment on a claim for common law damages issue estoppel can arise in subsequent corresponding EC proceedings between the same parties.  In 陳志遠 對 恆力建築有限公司及另一人 CACV 8/2011 (unreported, 14 February 2012), Chu JA giving the judgment of the court said as follows:

“ 17. 《僱員補償條例》第9、10和10A條就僱員補償金的計算作出了規定。申請人在發生意外時是50歲。他在受傷前每月平均收入是13,780元。僱員補償（普通評估）委員會評估申請人因意外受傷導致喪失賺取收入能力的程度為4.5%。申請人透過前任代表律師行提交的申索申請書中指他因意外獲醫生批給病假一天（即2001年8月6日）。他同時聲稱自2001年10月19日起直至提交申請書時（即2003年4月30日），仍然因傷勢而喪失工作能力。然而在HCPI 529/2006案中，龍聆案官經考慮案中所有證據（包括專家醫生的醫學報告）後，裁斷申請人的傷勢在意外發生後12個月，已完全痊癒，而申請人亦可以恢復意外前的工作。

  18.     由於HCPI 529/2006案和DCEC 444/2003案的訴訟因由和訴訟人都一樣，因此龍聆案官在HCPI 529/2006案中就申請人的傷勢、康復進度和喪失工作能力程度等事實的爭議的裁斷，對申請人和答辯人有約束力，並可引用作為判決DCEC 444/2003案的事實基礎。”

84.  With the above principles in mind, I now turn to the Issue Estoppel Application.

XV.  ISSUE ESTOPPEL APPLICATION:  MATTERS OF LIABILITY

(a)  Defendant’s position

85.  In his written submissions, Mr Wong concedes that in view of the findings on the issue of liability in the EC Action, the defendant “is only pursuing on whether the [plaintiff] should be held liable for contributory negligence” (see also paragraph 33 above).  At the 2^nd Hearing, Mr Wong went further to concede issue estoppel arises in the PI Action as a result of findings in the EC Action that (a) the plaintiff actually suffered the Accident, and (b) his injuries as found in the EC Judgment were the result of the Accident and not self-inflicted.  Plainly, these issues are ones that were bound to be raised in the EC Action and were resolved in the EC Judgment that awarded EC in favour of the plaintiff.  In my view, the EC Judgment has concluded all matters which were necessary to decide as the groundwork of the decision itself though not then directly the point at issue, and such matters cannot now be raised again in the PI Action because such re-litigation is to tantamount to suggesting that the EC Judgment is erroneous.  It is therefore no wonder that Mr T Wong and Mr Wong both confirm that the essential dispute on the issue of liability in the PI Action is contributory negligence.

(b)  Impugned matters

86.  By the Re-Amended Summons, the plaintiff applies to strike out paragraphs 2-3 on page 2 of the Answer (item 18 of Table B, see paragraph 31(a)-(b) above), paragraphs 6-7 of the JMP 1^st Statement (item 19 of Table B) and paragraph 7 of the JMP 2^nd Statement (item 20 of Table B) on the ground of issue estoppel.

87.  By the averments in paragraph 2 on page 2 of the Answer, the defendant does not admit that the plaintiff had a 5 cm laceration on his right thigh in the Accident.  They also do not admit the plaintiff sustained a 5 mm cut in his right wrist in the Accident, and further deny the plaintiff had a 5mm wound to his right wrist when he was admitted to PYNEH.  The defendant questions whether there was a genuine accident, and claims that the plaintiff only sustained very minor or no significant injuries.  The defendant also avers that the plaintiff was observed to leave the building where the Office was located with no discomfort, and although the Office was in Mongkok he boarded his car and drove to PYNEH in eastern Hong Kong.  In the JMP 1^st Statement, JMP expressed surprise about this since there were 3 hospitals (ie Kwong Wah Hospital, Caritas Medical Centre and Queen Elizabeth Hospital) closer to the Office.

88.  Paragraph 3 on page 2 of the Answer pleads that Dr Lau has raised doubt about the injury to the plaintiff’s right wrist as detailed in the Lau Report.  In paragraph 7 of the JMP 2^nd Statement, JMP claims that on 6 March 2006 he took the plaintiff to see Dr Johnson Lam (“Dr Lam”), and he further recalled that when Dr Lam asked the plaintiff how he suffered the injury, the plaintiff said he did not know.  JMP says that Dr Lam’s notes did not record how the injury happened, and the plaintiff gave different versions as to the cause of his injury (from glass to cutter) to different medical personnel which can be contrasted with Dr Chau Choi-yiu’s record of 11 March 2007 that described the injury as a stab wound.

(c)  Counsel’s submissions

89.  Mr Shum submits that by the EC Judgment the EC Judge has already found that the plaintiff’s right wrist and right thigh injuries were caused by the Accident and not self-inflicted, and the defendant is plainly estopped from raising any of the impugned matters in paragraphs 86-88 above.

90.  Mr Wong raises the argument in paragraph 70 above in response, which argument I have rejected (see paragraphs 71-72 above).  Wan Chee Leung (see paragraphs 59-60, 72 and 77 above) demonstrates that findings/determinations in EC proceedings can give rise to issue estoppel as to the occurrence and circumstances of the subject accident in subsequent corresponding personal injury litigation.  It is also clear from Yeung Pui Lap (see paragraph 78 above) that findings in earlier EC proceedings can raise issue estoppel over “the nature of the injuries” in subsequent corresponding personal injury litigation. There is no merit to Mr Wong’s argument.

(d)  Discussion

91.  Nevertheless, it is still necessary to consider whether given the fundamental findings/determinations in the EC Judgment the plaintiff is debarred from re-litigating the matters identified in paragraphs 86-88 above.

92.  For reasons given below, I have no hesitation in coming to the conclusion that the defendant cannot re-litigate the matters set out below and that they ought to be struck out on the ground of issue estoppel:

(a)  paragraph 2 on page 2 of the Answer (item 18 of Table B);

(b)  the word “while” and the phrase “Dr Lau did raise doubt about the injuries to his right wrist, as more detailedly set out in his report” in paragraph 3 on page 2 of the Answer (item 18 of Table B);

(c)  the word “alleged” in paragraph 6 of the JMP 1^st Statement (item 19 of Table B);

(d)  the 4^th sentence in paragraph 7 of the JMP 1^st Statement (ie “This was surprising as these were the hospitals closet to our office.”) (item 19 of Table B);

(e)  the 3^rd to 5^th sentences in paragraph 7 of the JMP 2^nd Statement (ie “I specifically remember that Dr Lam asked how the injury occurred and the Plaintiff replies ‘I don’t know’.  Dr Lam’s medical notes show no note of how the injury occurred and it is clear from various medical notes that the Plaintiff graduates from glass to a cutter as he variously describes the cause of his injuries to other medical personnel at this time.  I specifically remember this because it contrasts to the record of Dr Chau Choi-yiu on 11^th March 2007 which describes the injury as a stab injury (The Plaintiff requested that this not be disclosed to me).” (item 20 of Table B).

93.  In my view, all of the above allegations go and only go to the essential questions of whether the Accident did occur and whether the plaintiff suffered injuries to his right wrist and right thigh as a result of the Accident, and these were the very issues at the heart of the EC Action and the subject of fundamental findings/determinations in the EC Judgment.  In view of the necessary elements of section 5(1) of the ECO of inter alia “personal injury by accident” (see paragraphs 69 and 72 above), any findings on these matters in the EC Judgment cannot be said to be merely evidentiary or collateral.  In any event, the defendant cannot raise dispute and tender evidence to contradict these findings in relation to the same issue (see paragraph 57 above).

94.  The EC Judgment held that the plaintiff sustained a 5 cm superficial laceration over his right thigh which was evident on examination at PYNEH’s AED shortly after the Accident and there was a scar on the right thigh at the time of trial (see paragraphs 13 and 28 of the EC Judgment), and further held that the plaintiff’s right wrist injury was not a recent fabrication (see paragraphs 13-14 of the EC Judgment).  Indeed, the EC Judge rejected the defence submission that the plaintiff suffered no wrist injury at the time when he left the Office (see paragraph 22 of the EC Judgment).  There are clear and obvious findings of fact in the EC Judgment that (a) the plaintiff did suffer the Accident (see paragraphs 4-12 of the EC Judgment), (b) the above injuries were sustained in the course of his employment with the defendant, and (c) there was no evidence to support the allegation that the plaintiff self-inflicted injuries on his body (see paragraph 29 of the EC Judgment).

95.  In my view, given the express finding in the EC Judgment that the Accident occurred as the plaintiff claimed, the defendant cannot re-litigate this fundamental issue, say, by referring to “the alleged accident” in paragraph 6 of the JMP 1^st Statement (item 19 of Table B) or by saying “if there was a genuine accident” in paragraph 2 on page 2 of the Answer (item 18 of Table B).

96.  Further, in light of the findings in the EC Judgment set out in paragraph 94 above, the defendant cannot by way of paragraph 7 in the JMP 1^st Statement call into question the genuineness of the Accident or the injuries that resulted from the Accident by casting suspicion on the plaintiff’s attendance at PYNEH instead of hospitals in Kowloon.  Likewise, as regards the suspicion cast by the defendant’s allegation that the plaintiff boarded a car and drove to PYNEH when the Office was in Mongkok, such allegation has also been determined in the EC Judgment.  The EC Judge accepted the plaintiff’s explanation that PYNEH was near his residence and he had intended to change his clothes and return to the Office to work (see paragraph 3(1) of the EC Judgment).  The EC Judge also found that failure by the plaintiff and the Wife to report their change of address was not proof that he did not move from their old Tai Kok Tsui address to the new address, which matter would not contribute to the resolution of the main issue (see paragraph 3(4) of the EC Judgment).  (As a matter of interest, JMP in paragraph 7 of the JMP 1^st Statement admits he knew the plaintiff was living in Chai Wan at the material time.)  The EC Judge further decided that such allegations did not amount to any valid criticism of the genuineness of the Accident.  He took the view that only a short time would be needed for the plaintiff to inflict injuries on his own person had he been minded to do so, so the distance from the Office to the hospital would not have made any difference (see paragraph 3(1) of the EC Judgment).  The EC Judge also analysed the Wife’s explanations on the “borrowed” car that took the plaintiff to PYNEH, and was satisfied she was telling the truth.  In any event, he decided that the evidence relating to such car (apart from the fact that it conveyed the plaintiff to PYNEH) was irrelevant to “the main issues in this case” (see paragraph 3(3) of the EC Judgment).

97.  As regards the allegation made at the EC Trial and referred to in paragraph 2 on page 2 of the Answer, ie the plaintiff was observed to leave the building where the Office was located with no sign of discomfort, the EC Judge accepted that the plaintiff was simply not paying particular attention to his right wrist or attending to such wound, and that any blood stain would have been wiped by the cuff of his sleeve.  The EC Judge refused to conclude (a) there was no cut injury to the right wrist because no blood stain on the palm was observed or (b) there was no wound because the plaintiff was not paying particular attention to his right wrist (see paragraph 17 of the EC Judgment).  The EC Judge also held that the relevant extracts of the CCTV recordings had blurred images and did not last long enough for him to make any meaningful finding.  Further, the EC Judge disagreed that when a person (who had had a 5 cm cut to his thigh) was walking he would be looking at or attending to the wound. On the contrary, he found it natural that a person would not be paying attention to his thigh or attending such wound when he was walking (see paragraph 28 of the EC Judgment).

98.  Turning to paragraph 6 of the JMP 1^st Statement (item 19 of Table B), apart from the word “alleged” therein, such paragraph merely describes how JMP was notified of the Accident.  Further, apart from the 4^th sentence in paragraph 7 of the JMP 1^st Statement to the effect that JMP was surprised that the plaintiff went to PYNEH and not the 3 hospitals nearest to the Office, such paragraph describes JMP’s efforts in locating the plaintiff after the Accident, his visit to PYNEH to see the plaintiff, and his conversation with the doctor at PYNEH’s AED.  I am unable to see how the findings/determinations in the EC Judgment preclude the raising of these matters in the PI Action.  JMP’s allegations as to his conversation with the doctor at PYNEH’s AED are not inconsistent with the findings in the EC Judgment (see paragraphs 6, 15-16 and 26 of the EC Judgment).  So apart from the matters specified in paragraph 92(c)-(d) above, I do not propose to strike out the remaining parts of paragraphs 6-7 of the JMP 1^st Statement (item 19 of Table B), but obviously they cannot be used to undermine the findings in the EC Judgment that the Accident did occur and that the plaintiff did sustain personal injury by the Accident as found by the EC Judge.

99.  In paragraphs 2-3 of the Answer (item 18 of Table B), the defendant relies on Dr Lau’s doubts about the plaintiff’s injury to the right wrist as expressed in the Lau Report to deny or not admit the right wrist and right thigh injuries. However, the EC Judgment made unequivocal findings that the Accident did occur and that the plaintiff did sustain right wrist and right thigh injuries as a result of the Accident, and the defendant cannot re-litigate these matters by pleading averments that challenge these fundamental findings.  In any event, the EC Judgment has already dealt with Dr Lau’s “doubts” about the plaintiff’s right wrist injury.  The EC Judge preferred the explanation by PYNEH’s doctors which had allayed such doubts (see paragraphs 16 and 18 of the EC Judgment), and he further concluded that such “doubts” laid outside the realm of Dr Lau’s expertise (see paragraphs 18-26 of the EC Judgment).  Consequently, the EC Judge dismissed such “doubts” and concluded that the plaintiff’s injuries (including the right wrist and right thigh injuries) were not self-inflicted but caused by the Accident.

100.  However, I see no reason to strike out the admission in paragraph 3 on page 2 of the Answer, so blue-pencilling is appropriate.  Only the offending parts set out in paragraph 92(b) above are liable to be struck out on the ground of issue estoppel.

101.  Again, the defendant tries to dispute (a) the occurrence of the Accident and (b) the causation of the plaintiff’s right wrist injury by the assertions in paragraph 7 of the JMP 2^nd Statement.  In short, JMP questions whether the plaintiff has fabricated the claim of cut injury to his right wrist by a paper cutter at the time of the Accident. However, this does not sit well with the Wong 1^st Affirmation and Mr Wong’s submissions (see paragraphs 33 and 85 above).  In any event, as Mr Shum submits, the EC Judge by the EC Judgment found that the Accident did actually happen and the plaintiff did actually suffer a cut injury to the right wrist as a result of the Accident.  He further found there were paper cutters on the reception desk, and there was evidence of cutter on the floor near to where the plaintiff fell.  He therefore concluded that the Accident happened and injuries were sustained as the plaintiff alleged and were not self-inflicted (see paragraphs 14, 24 and 29 of the EC Judgment).  Further, JMP cannot now assert the plaintiff did not tell Dr Lam about his wrist injury.  In the EC Judgment, the EC Judge noted that Ms Lam, who is Dr Lam’s clinic executive/orthodist and whom defence counsel acknowledged to be an honest witness, testified at the EC Trial to the effect that on 6 March 2006 the plaintiff told her he had injured his right wrist at work at the Office on 1 March 2006 (see paragraph 14 of the EC Judgment).

102.  However, the defendant is not precluded from raising the matters in the 1^st, 2^nd, 6^th and 7^th sentences of paragraph 7 of the JMP 2^nd Statement, which are not inconsistent with the findings/determinations in the EC Judgment and are in any event collateral or evidentiary matters.  Hence, a blue-pencil approach should be adopted, and only the parts specified in paragraph 92(e) above will be struck out.

103.  For the avoidance of doubt, issue estoppel will not preclude the defendant from disputing whether the Accident was caused by negligence, breach of contract, breach of common duty of care and/or breach of statutory duty on the part of the defendant and/or from claiming that the plaintiff is liable for contributory negligence (see Yeung Pui Lap at paragraph 78 above).

XVI.  CONSEQUENTIAL APPLICATION: MA 1^ST STATEMENT

104.  Order 20 rule 8(1) of the RHC provides that for the purpose of determining the real question in controversy between the parties in any proceedings, or of correcting any defect or error in any proceedings, the court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order a pleading or any other document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

105.  In light of my ruling in Part XV above, I agree that paragraphs 10 and 12-14 of the MA 1^st Statement should be consequentially removed by amendment.

XVII.  ISSUE ESTOPPEL APPLICATION: MATTERS OF QUANTUM

106.  Mr Shum submits that on the issue of quantum, the following matters (which are the same issues in the PI Action) have been inter alia canvassed at the EC Trial and decided in the EC Judgment:

(a)  the plaintiff’s income at the time of the Accident;

(b)  the nature of work or scope of duties in respect of the plaintiff’s pre-Accident employment;

(c)  whether and to what extent the plaintiff needed to use his right hand in his pre-Accident work.

(a)  Plaintiff’s income at the time of the Accident

107.  The impugned parts of the defendant’s pleadings and witness statements in respect of the plaintiff’s income at the time of the Accident are as follows:

(a)  2^nd sentence of paragraph 4 and paragraphs 5-6 on pages 3-4 of the Answer (item 18 of Table B, see paragraph 32(a)-(b) above);

(b)  paragraphs 16-19, 20 (except the 1^st sentence) and 1^st sentence in paragraph 22 of the JMP 1^st Statement (item 19 of Table B).

108.  In the Answer and the JMP 1^st Statement, the defendant claims that although the plaintiff was at the time of the Accident earning a fixed basic salary of HK$20,000.00, discretionary bonuses were given to staff members (ie HK$150,000.00 to each of the plaintiff, Mr Young and Alan Cheung, and HK$10,000.00 to Candy Tong) around Chinese New Year in 2006 due to the firm’s good performance.  “It is not admitted that such bonus formed part of the [plaintiff’s] regular income”.

109.  The JMP 1^st Statement goes further to state that:

(a)  both prior to and since the 2006 accounting year, JMP made discretionary bonus payments to his staff, and all bonus payments were contemporaneously incorporated into the firm’s solicitors’ accounts which were audited;

(b)  JMP is fully aware that under the Legal Practitioners Ordinance Cap.159 and SPR a solicitor cannot share profits with an unqualified person, and the plaintiff was at all material times an unqualified person;

(c)    JMP did not agree to pay the plaintiff nor did he ever pay the plaintiff any commission, and the payment of HK$150,000.00 to the plaintiff in 2006 was only made in the circumstances described above and not (as alleged by the plaintiff) as commission;

(d)  aside from such discretionary bonus, the plaintiff’s salary throughout his employment by the defendant remained at HK$20,000.00 per month with employer’s MPF contribution at HK$1,000.00 per month;

(e)    had the plaintiff remained working for the defendant, his monthly salary would have remained at HK$20,000.00 subject to upwards or downwards fluctuation due to market conditions and the firm’s business, and the plaintiff well knew that JMP was the only one who could and did decide his salary;

(f)     JMP was very concerned about the untrue allegations about commission made against him by the plaintiff.

110.  There is no dispute between the parties that the plaintiff’s basic salary at the time of the Accident was HK$20,000.00 per month.  According to the EC Judgment, the plaintiff gave evidence that he had an oral agreement with the defendant that 30% commission would be given to him for cases he introduced and handled by the defendant firm, and for such purpose he was given HK$150,000.00 on/about 3 February 2006.  Although the defendant asserts that such sum was a discretionary Chinese New Year bonus and not contractual commission, Ms Chan (the defendant’s accountant clerk) did not know the nature of such payment or how it was calculated, and JMP did not give evidence at the EC Trial. The EC Judge rejected defence counsel’s submission that the payment of HK$150,000.00 to the plaintiff “was clearly casual and of non-recurrent nature according to the documents”, and accepted the plaintiff’s non-contradicted evidence to find that his average monthly earnings were HK$32,500.00 per month (HK$20,000.00 (basic salary) + HK$150,000.00 ÷ 12 (average commission)) (see paragraph 30 of the EC Judgment). I note that the issues as to the amount of the plaintiff’s pre-Accident earnings and the nature of the payment of HK$150,000.00 he received around Chinese New Year in 2006 (ie whether it was commission or otherwise) were the subject of detailed closing submissions by both Mr Shum for the plaintiff and Mr Wong for the defendant in the EC Trial (see pages 323-324 and 331-332 of the transcript of the EC Trial).

111.  Mr Wong submits that notwithstanding such findings/decision in the EC Judgment, there is still no issue estoppel because in coming to the decision that (a) the plaintiff had an oral agreement with the defendant that 30% commission would be given to him for cases he introduced and handled by the defendant firm, (b) the payment of HK$150,000.00 to the plaintiff around Chinese New Year in 2006 was such commission and (c) HK$12,000.00 was the plaintiff’s average monthly commission, the EC Judge merely assessed the plaintiff’s pre-Accident monthly earnings pursuant to section 11 of the ECO, but the trial judge in the PI Action will not be bound by such statutory provision.  Hence, Mr Wong argues that the defendant is entitled to re-litigate and contend that their payment of HK$150,000.00 to the plaintiff around Chinese New Year in 2006 was a discretionary bonus.

112.  Mr Wong confirms in his oral submissions at the 2^nd Hearing that the defendant does not rely on any alternative argument other than their pleas in the Answer, but it appears from his oral/written submissions that in fact the defendant relies on the alternative contention that if, contrary to the defendant’s primary stance, the payment of HK$150,000.00 to the plaintiff round Chinese New Year in 2006 was in the nature of commission rather than discretionary bonus, issue estoppel still does not apply because the trial judge in the PI Action will have to adjudicate on the following issues, which issues (i) are not within the ambit of the ECO, (ii) the defendant was not bound to raise in the EC Action, and (iii) have not been canvassed or considered in the EC Action:

(a)  whether the commission will be recurrent;

(b)  whether it is lawful or legal for the plaintiff who is an unqualified person to receive and for JMP as a qualified solicitor and principal of the defendant firm to pay such commission;

(c)  whether it is possible/lawful for the plaintiff to get commission from other law firms, including KBC, if he had left the defendant’s employ for reasons other than the Accident.

113.  Mr Wong submits that the illegality argument is a pertinent legal issue in the PI Action because the plaintiff’s claim for past and further loss of earnings is based on a notional monthly income of HK$32,500.00 of which a substantial component is commission earnings.  He says that illegality generally trumps a res judicata estoppel unless the question has been litigated in earlier proceedings (see Westacre Investment Inc v Jugoimport-SDRP Holding Co Ltd [2000] 1 QB 288 and Spencer, Bower and Handley, Res Judicata 4^th ed para.8.33 at p.121).  Mr Wong submits “[there] are authorities suggested that if illegality is raised, and at least where the evidence of illegality is so strong that if not answered it would be decisive of the case, the Court would not allow reliance on issue estoppel to prevent the point ventilated”.  Since the EC Judge was only concerned with the calculation of the plaintiff’s pre-Accident earnings pursuant to section 11 of the ECO and did not deal with issue of illegality when he came to his findings/decision, the defendant should not be precluded from contending in the PI Action that the plaintiff would only have been able to earn his fixed monthly salary had he not been dismissed for other reasons.

114.  I should start by saying that apart from the assertion in the JMP 1^st Statement set out in paragraph 109(e) above, the impugned parts of the Answer and the JMP 1^st Statement set out in paragraphs 107-109 above relate to specific historical facts/matters, eg the plaintiff’s monthly income at the time of the Accident, the nature of the sum of HK$150,000.00 paid to the plaintiff around Chinese New Year in 2006, and whether such payment formed part of his then regular income, rather than points of law or future postulation. Likewise, the findings/determinations in the EC Judgment set out in paragraph 110 above also relate to these specific historical facts/matters.

115.  In my view, it is essential for the EC Judge to consider and adjudicate on these specific facts/matters in assessing the amount of EC to be awarded.  Mr Wong reminds that the statutory cap of HK$21,000.00 per month applies to the calculation of any award under section 9(1A) of the ECO.  But one cannot ignore the fact that in the EC Judgment the EC Judge adopted the Paper Mills formula in calculating the amount of the section 9(1A) award, and such methodology requires a decision on the “earning capacity at the time of the accident” (ie the monthly earnings at the time of the Accident) to stand as the denominator in such formula for calculating the percentage of loss (see Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556, 560).

116.  Further, the earnings multiplicand for calculating the award under section 10 of the ECO is not subject to such statutory cap.  But Mr Wong says this has no bearing because any findings as to the plaintiff’s average monthly earnings in the EC Judgment were constrained by section 11 of the ECO (which is not applicable in the PI Action).

117.  Section 11 of ECO provides as follows:

“Subject to this section, for the purposes of [the ECO] the monthly earnings of an employee at the time of the accident shall be the earnings –

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

118.  Section 3 of the ECO defines “earnings” as meaning:

“any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes …… any …… other special remuneration for work done, whether by way of bonus , allowance or otherwise, if of constant character or for work habitually performed…… but shall not include …… casual payments of a non-recurrent nature, ……” (my emphasis)

119.  Hence, in finding that the sum of HK$150,000.00 paid to the plaintiff around Chinese New Year in 2006 was commission and that the average monthly commission of HK$12,000.00 should be included in the plaintiff’s average monthly earnings in addition to his fixed basic monthly salary of HK$20,000.00, the EC Judge must have found such commission was part of the plaintiff’s remuneration that was “of a constant character or for work habitually performed” and was not “casual payments of a non-recurrent nature”.  In my view, this was a point actually decided in the EC Judgment, but even if it were not, it must be a matter which was necessary to be decided and which was actually decided as the groundwork of the decision itself.  To dispute such matter now in the PI Action is tantamount to asserting that the EC Judgment is erroneous, which is not permissible.

120.  In my view, section 11 of the ECO of itself does not prevent the EC Judge from making a finding (if he had seen fit to do so on the available evidence) that the payment of HK$150,000.00 to the plaintiff in 2006 was in the nature of a discretionary bonus that was “casual” and “non-recurrent”, in which case it would have been excluded from the calculation of the plaintiff’s pre-Accident earnings in the EC Judgment.  However, upon assessing the evidence, the EC Judge found that such payment was in fact commission being a payment of a constant character or for work habitually performed.  It is therefore specious to suggest that in present context there is any real or material distinction between the EC Action and the PI Action when it comes to determining the plaintiff’s earnings prior to or at the time of the Accident.

121.  Even though the assertion in the JMP 1^st Statement in paragraph 109(e) above refers to the plaintiff’s notional earnings had the defendant continued to employ him after the Accident, it is still objectionable because JMP states that the plaintiff’s salary “would have remained at HK$20,000.00” (my emphasis), which assertion suggests that his monthly earnings prior to or at the time of the Accident was just the fixed basic monthly salary of HK$20,000.00.  As explained above, the defendant is estopped from making any such suggestion in the PI Action in view of the findings/determinations in the EC Judgment.

122.  Mr Wong then raises the issue of illegality.  Although he puts forward this argument on a rather broad basis, it is essential to place such argument within its proper context for true understanding of its import.

123.  As Mr Shum points out, illegality has not been pleaded in either the Defence and/or the Answer.  Order 18 rule 8(1) of the RHC provides inter alia that:

“A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, …… any fact showing illegality – (a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading”.

In the PI Action, the issue of illegality first surfacedin Mr Wong’s supplemental written submissions.  But notwithstanding the lapse of more than 4 months from the filing of the Amended Summons to the 2^nd Hearing, the defendant has not (a) made any application to amend their pleadings to plead any averment or material fact showing illegality, (b) exhibited such draft amended pleading to the Wong 2^nd Affirmation and/or (c) produced any such draft pleading at the 2^nd Hearing.  Mr Shum says this is a sufficient answer to the defendant’s contentions on the issue of illegality.

124.  But even assuming that the alternative illegality argument can be maintained in the absence of an express assertion of illegality, the defendant must raise the material facts (and evidence in support thereof) showing illegality. In such circumstances, whilst the defendant denies (a) there was an oral agreement between the parties that 30% commission would be given to the plaintiff for cases introduced and handled by the defendant firm and/or (b) the sum of HK$150,000.00 paid to the plaintiff around Chinese New Year in 2006 was in the nature of commission and not discretionary bonus, these matters necessarily form the underlying factual premise in order to raise the defendant’s alternative plea of illegality (ie either such arrangement for payment of commission or the commission as paid or both are illegal).  This is borne out by the 3 questions posed by Mr Wong for the PI Action which he says have not canvassed or considered in the EC Action (see emphasis in paragraph 112(a)-(c) above).

125.  However, in his oral submissions at the 2^nd Hearing, Mr Wong said the defendant insisted that the sum of HK$150,000.00 paid to the plaintiff around Chinese New Year in 2006 was a discretionary bonus and specifically disavowed reliance on any alternative defence.  That being the case, it is difficult to envisage how an illegality argument can be framed without the relevant alternative underlying material facts to support such argument.  On such basis, there is no need to further consider any illegality argument.

126.  But confusingly Mr Wong’s written and oral submissions do raise the issue of illegality and in his oral submissions at the 2^nd Hearing he even suggests that the defendant may in future consider applying for leave to amend their pleadings to plead an illegality defence.  So for the sake of completeness but without prejudice to my conclusion in the above paragraph, I shall consider Mr Wong’s arguments on the basis that the defendant may raise the issue of illegality on the premise of either (a) and/or (b) as described in paragraph 124 above as an alternative defence.  But since (a) and (b) as described in paragraph 124 above are in fact the findings/determinations in the EC Judgment, they do not confront the estoppel and there is no inconsistency that precludes such matters (and also the alternative illegality argument based on such matters) from being raised in the PI Action.  In my view, this is a sufficient answer.

127.  Mr Wong then refers to Westacre Investment Inc which concerns a Swiss law contract for sale of military equipment to Kuwait.  The defendants argued unsuccessfully at the ensuing ICC arbitration in Geneva that the arrangement was tainted by bribery or other illicit personal influence and hence contrary to public policy.  The award clearly showed that bribery was a central issue, but such allegation was made, entertained and rejected.  Following dismissal of an appeal by the defendants to the Swiss Federal Tribunal the claimants sought to enforce the award in England.  The defendants opposed enforcement on the grounds that the award was contrary to public policy, and sought to introduce by amendment a further ground of defence, ie the claimants’ witnesses had given perjured evidence at the arbitration.

128.  Colman J held that since the arbitrators in exercising their legitimate jurisdiction had determined that the contract was not illegal and the evidence had been available (and indeed deployed) in the Swiss court being the court of supervisory jurisdiction, the court would prima facie enforce the resulting award.  It was only where the enforcement was revisited on the basis of facts not placed before the arbitrators which demonstrated that the contract was illegal that the court would then consider whether the public policy against the enforcement of illegal contracts was outweighed by the countervailing public policy in support of finality of awards.

129.  On appeal, the majority in the Court of Appeal held there was no justification for refusing to enforce the award.  But all three members of the Court of Appeal, whilst differing upon the result, accepted that the court had to see whether the public policy of finality in litigation or arbitration was overridden by some more important public policy based upon the unenforceability of illegal contracts.  Waller LJ accepted the proposition that where illegality was raised and at least where the evidence of illegality was so strong that if not answered it would be decisive of the case, it could provide the special circumstances in which an estoppel would not provide a defence.  Whilst the other two Lord Justices disagreed as to the result, they both agreed that the nature and seriousness of the alleged illegality should be taken into account as part of the balancing exercise between the competing public policy considerations of finality and illegality.

130.  In the present context, it is true that the issue of illegality was not determined in the EC Action.  But it does not necessarily follow that the raising of an illegality argument in later personal injury proceedings will necessarily trump an issue estoppel. In order to go behind the court’s findings/determinations in the EC Judgment, the test is not whether the court in the PI Action can see the “commission” is manifestly illegal, but whether there is a sustainable argument that confronts the estoppel raised by the plaintiff against whom the estoppel is said to operate (ie the defendant) that there was such illegality.  As explained in paragraphs 124-126 above, the problem here for the defendant is that the illegality argument does not confront the estoppel.  The issue estoppel here only relates to the primary matters that constitute the alternative material facts for the alleged illegality without which such argument cannot even be raised.  In my view, the contention on illegality, even if it can be raised, does not aid the defendant.

131.  Mr Wong then argues on the basis of Ngai Few Fung that the court needs to examine all the circumstances to see whether it is just to apply issue estoppel in a later proceeding.  However, although I accept that in appropriate cases there may be “special circumstances” where issue estoppel will not operate, I do not agree with Mr Wong’s contentions (see paragraphs 63-64 above).

132.  Mr Shum raises two further arguments.  First, he argues in his oral submissions that the defendant is not raising a true illegality argument for they are merely asserting breach of the solicitors’ code of conduct. I do not think this is correct.  Mr Wong in his submissions and JMP in the JMP 1^st Statement (see paragraphs 109(b) and 112(b) above) rightly concede that the plaintiff is an unqualified person and rule 4 of the SPR provides inter alia that “[a] solicitor shall not share or agree to share with any person not being a solicitor practising in Hong Kong his profit costs in respect of any business whether by way of paying or agreeing to pay a commission on business introduced by any such person not being a solicitor, or otherwise ……”

133.  Secondly, Mr Shum submits that the illegality argument has no relevance in the PI Action because the plaintiff is not precluded from claiming for loss of earnings and/or loss of earning capacity even if such claims are tainted by illegality (see the illegal hawker cases of Chung Man Yau & anor v Sihon Co Ltd [1997] HKLRD 1221, Chiu Wing Sze v Chan Ying Wai & anor [2001] 2 HKLRD 92, 廖小梅 v倪曉暉及中廣沛昌（香港）工程有限公司HCPI 1033/2002, Master KH Hui (unreported, 22 August 2007), the illegal night watchman case of Lee Chun Fat v Chan Kin Wo CACV 334/2002 (unreported, 20 March 2003), and Eaton v Johnson [2008] UKPC 1 LTL (28 January 2008) cited in Kemp & Kemp The Quantum of Damages Vol.1 para.8-021.1 at p.8010).  In Chung Man Yau, Mortimer VP said at p.1227 that the applicable principles are as follows:

“The court must examine all the circumstances – the nature of illegality complained of, the moral and criminal culpability and the plaintiff’s conduct. Also any relevant legislation must be considered. Having done that the court must decide whether in all those circumstances it would affront the public conscience or offend the ordinary right-thinking citizen if compensation for the loss concerned is awarded.”

Under such test it is not necessarily the case that recovery of loss of earnings that are tainted with illegality will always be permitted, and an example can be found in Tsang Siu Hong v Kong Hoi For trading as Wing Hing Auto Engineering Service & anor HCPI 173/2001, DHCJ Wright (as he then was) (unreported, 10 March 2003) in which an illegal immigrant worker was only able to recover earnings based on his lawful Mainland China employment rather than his Hong Kong income.  Therefore, I am not persuaded that Mr Shum’s arguments in this respect provide a definitive answer.

134.  In the circumstances, the following should be struck out on the ground of issue estoppel:

(a)  2^nd sentence in paragraph 4 on page 3 of the Answer (ie “He was at the time of the accident earning a fixed basic salary of $20,000.”) (item 18 of Table B);

(b)  the phrases “(which included the Plaintiff)” and “(a) the Plaintiff – HK$150,000;” in paragraph 5 on page 3 of the Answer (item 18 of Table B);

(c)  2^nd sentence in paragraph 6 on page 4 of the Answer (ie “It is not admitted that such bonus form part of the Plaintiff’s regular income.”) (item 18 of Table B);

(d)  1^st sentence (ie “Regarding the Plaintiff’s remuneration at my firm, he was on a fixed salary of $20,000 since 1^st April 2005.”) and the phrase “(a) the Plaintiff - $150,000;” in paragraph 16 of the JMP 1^st Statement (item 19 of Table B);

(e)  paragraph 17 of the JMP 1^st Statement (item 19 of Table B);

(f)   last two sentences in paragraph 18 of the JMP 1^st Statement (ie “I did not agree to pay him and nor did I ever pay him any commission. The payment of $150,000 to him was only made in the circumstances described above and was not a commission as he has alleged.”) (item 19 of Table B);

(g)  paragraph 19 of the JMP 1^st Statement (item 19 of Table B);

(h)  2^nd sentence in paragraph 20 of the JMP 1^st Statement (ie “I can confirm that even without that incident, if the Plaintiff had remained working in my firm, his salary would have remained at $20,000, subject to any fluctuation upwards or downwards due to market conditions and the firm’s business.”) (item 19 of Table B);

(i)   1^st sentence in paragraph 22 of the JMP 1^st Statement (ie “I was very concerned about the untrue allegations of commission made against me by the Plaintiff.”) (item 19 of Table B).

135.  No issue estoppel arises as to the nature of the payments to Mr Young, Alan Cheung and Candy Tong around Chinese New Year in 2006 as pleaded in paragraph 5 of the Answer and alleged in paragraph 16 of the JMP 1^st Statement since the EC Judgment has not made any findings/decisions on such matters, so it is appropriate to blue-pencil paragraphs 5-6 on pages 3-4 of the Answer and paragraph 16 of the JMP 1^st Statement.  But for the avoidance of doubt, the remaining parts in those paragraphs do not permit any re-opening of the finding/determination in the EC Judgment that the sum of HK$150,000.00 paid by the defendant to the plaintiff around Chinese New Year in 2006 was in the nature of commission and not discretionary bonus.

136.  Further, the 1^st sentence in paragraph 18 of the JMP 1^st Statement is uncontroversial and does not raise any issue estoppel. In respect of the last sentence in paragraph 20 of the JMP 1^st Statement (ie “I am the only person who could and did decide the Plaintiff’s salary and the Plaintiff well knew this”), it is not a contention that confronts the estoppel.

(b)  Nature of the Plaintiff’s pre-Accident work

137.  The plaintiff seeks to strike out on the ground of issue estoppel the following:

(a)  the 1^st sentence in paragraph 4 on page 3 of the Answer (ie “The Defendant avers that at the time of the accident, the Plaintiff was employed with a title of “Litigation Manager”, but his work was generally interpretation and sourcing of clients.”) (item 18 of Table B – see paragraph 32(a) above);

(b)  paragraph 11 of the Answer (item 18 of Table B – see paragraph 32(h) above);

(c)  4^th sentence in paragraph 2 of the JMP 1^st Statement (ie “However, it must be stressed that he was not required to type, file or prepare documentation.”) (item 19 of Table B);

(d)  paragraphs 3 and 13-15 of the JMP 1^st Statement (item 19 of Table B);

(e)  paragraph 3 of the JMP 2^nd Statement (item 20 of Table B).

138.  The Answer alleges that the nature of the plaintiff’s work as the defendant’s litigation manager was generally interpretation and sourcing of clients.  Since such job did not require much use of his right hand, any difficulties he had in looking for work after he left the defendant would not have been due to the effects of his alleged injuries.  Similar allegations were set out in the JMP 1^st and 2^nd Statements (see paragraph 137(c)-(g) above and paragraphs 141(c)-(g) below).

139.  These same allegations were raised by the defendant at the EC Trial.  The EC Judge found that prior to the Accident the plaintiff was in the position of litigation manager, and his main duties included marketing, sourcing new clients, taking instructions from clients, preparing claim forms and assisting in preparing cases.  He had to open files, take photographs, visit scenes of accidents, write down instructions and carry equipment, and to use his right hand to discharge his duties.  The EC Judge referred to the opinion by the Ortho Experts.  Dr Chiang opines that the plaintiff should be able to return to his pre-Accident employment but with some inconvenience or reduction in efficiency, and that it will be slow for him to use his right hand to write.  Dr Lau opines that the plaintiff’s right hand is severely impaired, so he will be unable to return to his pre-Accident employment and will have great problems in using his right hand to write, operate a keyboard or handle files.  Dr Lau suggests that the plaintiff should work as an interpreter.  The EC Judge also observed the plaintiff’s right hand in the course of the EC Trial, and concluded that the plaintiff would have great problem in using his right hand to discharge his pre-Accident duties.  The EC Judge agreed with Dr Lau that the plaintiff would not be able to cope with the demands of his pre-Accident duties and therefore could not return to his pre-Accident employment, so he allowed the plaintiff’s appeal against the assessment made by the medical board.

140.  In making an award for EC in the EC Judgment, the EC Judge in applying the Paper Mills formula had to ascertain whether the plaintiff could return to his pre-Accident employment.  To do so the EC Judge had to make a finding of fact as to the nature and scope of the plaintiff’s pre-Accident employment and decide whether the plaintiff could meet such job demands as found given his injuries and disabilities after the Accident. Plainly, these are necessary elements and/or fundamental issues under the EC Judgment.  Turning to the PI Action, Mr Wong submits that the main area of dispute on the issue of quantum is the plaintiff’s claim for loss of earnings, and a relevant question in this respect must be the nature and scope of the plaintiff’s duties before the Accident.  In light of the findings/determinations in the EC Judgment, I am firmly of the view that the defendant in the PI Action cannot re-open the issue of the nature and scope of the plaintiff’s pre-Accident work to contradict the findings by the EC Judge.

141.  I therefore have no hesitation in concluding that the following ought to be struck out on the ground of issue estoppel:

(a)  paragraph 11 of the Answer (item 18 of Table B);

(b)  4^th sentence in paragraph 2 of the JMP 1^st Statement (ie “However, it must be stressed that he was not required to type, file or prepare documentation.”) (item 19 of Table B);

(c)  the word “Although” and the phrase “, he was not required to type or use office systems” in paragraph 3 of the JMP 1^st Statement (item 19 of Table B);

(d)  the last sentence in paragraph 14 of the JMP 1^st Statement (ie “(The writing of brief instructions was not a particularly essential part of his job duties.)” (item 19 of Table B);

(e)  paragraph 15 of the JMP 1^st Statement (item 19 of Table B);

(f)   part of the 3^rd sentence (ie “but most certainly did not type or prepare documents other than to occasionally make hand written notes for statements or other such like”) and part of the 5^th sentence (ie “The other litigation staff prepared all the file documentation”) in paragraph 3 of the JMP 2^nd Statement (item 20 of Table B).

142.  Whilst the defendant is estopped from denying that dealing with documentation was part of his pre-Accident work duties and/or use of his right hand was required to discharge such duties, I am persuaded it is still open to the defendant to say to what extent his pre-Accident work required the use of his right hand. As a result, I have blue-pencilled paragraph 4 on page 3 of the Answer and the 3^rd to 5^th sentences of the JMP 2^nd Statement. I also do not see how the allegations that (a) the plaintiff was employed as the defendant’s legal clerk or litigation manager, (b) it was the plaintiff who requested that he be allowed to call himself a litigation manager, (c) he was allowed to use the title of litigation manager which gave him “face” within the firm, and (d) he did interpretation work for JMP and his assistant solicitor confront the estoppel.  Again, the impugned matters are blue-pencilled so that these allegations can remain.

XVIII.  CONSEQUENTIAL APPLICATION: PARAGRAPH 4 OF MA 2^ND STATEMENT

143.  In light of my ruling in Part XVII above, there is no need for the plaintiff to respond on the expunged matters, and hence I agree that paragraph 4 of the MA 2^nd Statement should be consequentially removed by amendment.

XIX.  IMPROVEMENT IN INJURIES

144.  The EC Judgment refers to the opinion by the Ortho Experts and the EC Judge’s observation of the plaintiff’s right hand (see paragraph 139 above).  The EC Judge concluded that the plaintiff would have great problem in using his right hand to discharge his pre-Accident duties.  He accepted Dr Lau’s opinion that the plaintiff would not be able to cope with the demands of his pre-Accident duties, and hence the plaintiff could not return to his pre-Accident employment.

145.  Mr Wong submits that the 1^st Ortho Jt Report dated 18 August 2009 shows there has been significant improvement in the plaintiff’s condition since he was examined by Dr Lau on 7 August 2007 and/or since the EC Trial.  He argues that because the EC Judgment only decided on the plaintiff’s disabilities based on the then available evidence, the EC Judge could not have foreseen the improvement and so the plaintiff in the PI Action cannot raise issue estoppel which only applies if there is no new evidence on the plaintiff’s disabilities.  Mr Wong submits that the current medical picture evident in the 1^st and 2^nd Ortho Jt Reports together with the surveillance materials show that the EC Judgment has been overtaken by “the recent improvement of the [plaintiff]”, and such decision cannot prevent the court in the PI Action from making different findings on loss of earnings, including any finding that the plaintiff can in fact return to his pre-Accident employment.

146.  Mr Wong cites McCann v Sheppard [1973] 1 WLR 540 in support of his proposition.  I do not propose to discuss this authority in any detail because Mr Shum fairly accepts that the defendant can adduce expert medical evidence (eg the 1^st and 2^nd Ortho Jt Reports) or factual evidence (if any) to show that the plaintiff’s condition has improved after the EC Judgment.  Indeed, the plaintiff has not applied to strike out paragraph 4 on page 4 of the Answer or parts of the statements (being discovered documents) and the corresponding witness statements in items 10-16 of Table A that concern the plaintiff’s ability to use his right hand (see paragraphs 219-220 and 246 below).  But I am not persuaded that Mr Wong’s arguments in this respect have any bearing on the discussions under Parts XV and XVII above which relate to past and not prospective facts and matters.

XX.  ISSUE ESTOPPEL AND INADMISSIBILITY APPLICATIONS: “DISMISSAL” OF THE PLAINTIFF 

147.  The plaintiff seeks to strike out the 1^st sentence in paragraph 20 of the JMP 1^st Statement (item 19 of Table B) under the Issue Estoppel Application.  The plaintiff also applies to strike out the following under the Inadmissibility Application:

(a)  paragraphs 7-10 of the Answer (item 1 of Table A, see paragraphs 32(c)-(g) above);

(b)  5^th sentence in paragraph 2, paragraph 4, and the preamble and sub-paragraphs (i)-(ii) in paragraph 21 of the JMP 1^st Statement (item 2 of Table A).

148.  Also related to the above applications is the defendant’s reliance on the documents concerning the Criminal Trial.  In this Decision, I shall refer to the defendant in the Criminal Trial also as the plaintiff.  The plaintiff seeks to strike out the following under the Inadmissibility Application:

(a)  paragraphs 4-6 of the JMP 2^nd Statement (item 4 of Table A);

(b)  Annexure B of the JMP 1^st Statement (item 3 of Table A);

(c)  Annexures A-D of the JMP 2^nd Statement (item 5 of Table A);

(d)  all documents relating to the Criminal Trial (item 6 of Table A).

(a)  Defendant’s allegations under paragraph 147 above

149.  In the impugned parts of the Answer, the defendant claims that the plaintiff returned to the Office on 11 March 2006 and had such a quarrel with JMP that JMP had to call the police and security staff.  The plaintiff then left the Office and never returned, so he was not dismissed for his abilities in performing his work (see paragraph 7 of the Answer).  In the JMP 1^st Statement, JMP claims that the plaintiff left the defendant firm following the 11 March 2006 incident.

150.  Paragraph 8 of the Answer avers that even without the Accident the plaintiff would have been dismissed by the defendant in/about April 2006 due to deliberate misconduct and/or dishonesty.  But in the JMP 1^st Statement, JMP claims that the plaintiff would have been dismissed by the defendant firm on 11 March 2006 for reasons of misbehavior.

151.  Paragraph 8 of the Answer goes on to say that around that time the defendant discovered the plaintiff had been involved in certain acts of dishonesty involving client’s money.  JMP reported to the police and gave a statement on 13 April 2006.  The defendant further avers that the plaintiff “would have been dismissed not later than 1^st April 2006 for such dishonesty” (my emphasis), which includes (a) paying client’s money into various bank accounts, including a joint account he held with the Wife and the account of his mother-in-law, and then withdrawing those monies, and (b) falsely representing to the client that the defendant required him to pay additional handling monies when no such demand was made by the defendant.  The defendant therefore claims in paragraph 9 of the Answer that the plaintiff’s “loss of income at the [defendant’s] firm was not due to any effect of the alleged injuries”.

152.  In the JMP 1^st Statement, JMP alleges that about 1-2 months prior to the Accident the defendant started to receive many phone calls from debt collectors looking for the plaintiff.  After the plaintiff left the firm, the defendant received a number of complaints against the plaintiff some of which concerned dishonesty on his part.  At least two such complaints were about the plaintiff receiving money directly from the defendant’s clients which he/Wife repaid when confronted in/about March/April 2006.  In at least four other cases, money was paid directly into accounts controlled by the plaintiff. The clients made complaints to the police and were assisted by the defendant firm.

153.  According to the JMP 1^st Statement, the plaintiff and the Wife were charged on 12 January 2007 for various counts of obtaining property by deception.  The plaintiff was charged on six counts. Two of those were ruled no case to answer in the Criminal Trial.  He was eventually acquitted of the four remaining charges. JMP says that amongst the facts discovered since the Accident were:

(a)  during the Criminal Trial the plaintiff admitted he had paid monies of a number of clients into various accounts, including a joint account he held with the Wife and also the account of his mother-in-law, and then withdrew those monies;

(b)  the plaintiff admitted having lent money to other clients.

154.  JMP in the JMP 1^st Statement says that both prior to and during the Criminal Trial dishonesty was demonstrated on the part of the plaintiff and the Wife, so he would not have continued to employ the plaintiff and would not have increased his wages.  Paragraph 10 of the Answer avers that as the plaintiff had left the defendant’s employ after the confrontation on 11 March 2006 and he would have been dismissed anyway for deliberate misconduct and/or dishonesty, the plaintiff would have had to look for a job in the open market in any event.

(b)  Defendant’s allegations under paragraph 148 above

155.  According to the JMP 2^nd Statement, during March/April 2006 (ie after the plaintiff had left the defendant firm), a number of clients and their friends/families separately came forward and made a flood of dishonesty complaints that eventually led to the plaintiff and the Wife being charged with various offences of dishonesty.  These clients were mostly vulnerable and illiterate, and some spoke little or no English.  JMP claims it was abundantly clear that the dishonesty or alternatively clearly furtive breaches of the Law Society guidelines, at the very least, amounted to deliberate misconduct.

156.  At the Criminal Trial the magistrate ruled there was no case to answer on charges nos.2 and 5 (see certificate of trial in Annexure B to the JMP 1^st Statement and item 6 of Table A).  As to the four remaining counts for fraud, the charge sheets (see Annexure B of the JMP 1^st Statement, Annexure C of the JMP 2^nd Statement and item 6 of Table A) state inter alia that:

(a)  on 10 February 2006 the plaintiff falsely represented to Singh Jagraj that HK$100,000.00 was payable to the defendant as legal fees and with intent to defraud induced Singh Jagraj to deposit two sums of HK$50,000.00 each into his mother-in-law’s bank account on 10 and 11 February 2006 respectively which resulted in a benefit to himself or a prejudice or a substantial risk of prejudice to Singh Jagraj (charges nos.1 and 7);

(b)  on a date unknown in mid-October 2005 the plaintiff falsely represented to Hussain Tahir that HK$5,000.00 was payable to the defendant as medical expenses for consultation with a private medical practitioner and with intent to defraud induced Hussain Tahir to deposit HK$5,000.00 into his mother-in-law’s bank account which resulted in a benefit to himself or a prejudice or a substantial risk of prejudice to Hussain Tahir (charge no.3);

(c)  on 9 November 2005 the plaintiff falsely represented to Nawaz Malik Shan that HK$5,000.00 was payable to the defendant as MRI treatment and with intent to defraud induced Nawaz Malik Shan to deposit HK$5,000.00 into the joint bank account he held with the Wife which resulted in a benefit to himself or a prejudice or a substantial risk of prejudice to Nawaz Malik Shan (charge no.4).

157.  At the conclusion of the Criminal Trial, the plaintiff was acquitted of the remaining four charges.  JMP with his “30 year experience as a criminal lawyer in Hong Kong and Higher Courts in U.K.” expresses surprise at the 2-page long Reasons for Verdict that acquitted the plaintiff “even though the learned magistrate says that he acquitted … ‘with some reluctance and regrets’ …”

158.  In the Reasons for Verdict (see Annexure A of the JMP 1^st Statement and item 6 of Table A), the magistrate said that “none of the witnesses (including [JMP] and the [plaintiff]) in this case, impressed [him] as being entirely honest and reliable. ……”  The magistrate shared the view of defence counsel at the Criminal Trial that JMP “could not resist using the witness box as a platform to smear the [plaintiff’s] character and trustworthiness”, and that JMP “deliberately went beyond” his limits as a witness.  The magistrate was also disturbed by the presence of Mr B Wong (a member of the defendant firm) in the courtroom throughout the Criminal Trial, and by the occasions in which Mr B Wong attempted to communicate with or influence the prosecution.  The magistrate had “serious doubts about [Mr B Wong’s] and [JMP’s] motives”.

159.  In the JMP 2^nd Statement, JMP explains by saying he remembers that at the end of his evidence in the Criminal Trial he informed the court that Mr B Wong (a former police chief inspector) could, if needed, remain in court in JMP’s future absence to provide assistance to the prosecution with respect to the documents.  However, defence counsel in the Criminal Trial objected and made much of it.

160.  The magistrate went on to say in the Reasons for Verdict that “[as] a general impression, apart from [JMP] and the [plaintiff] who gave their evidence in English, all the witnesses related to the present four charges (both prosecution and defence) were evasive in certain parts of their evidence”. In the end, the magistrate was unable to discern which side to believe and where the truth laid.  He said that “[when he had] doubts about the prosecution evidence, [he] must direct [himself] to acquit. With some reluctance and regrets, [he found] the [plaintiff] not guilty of Charges 1, 3, 4 and 7”.

161.  In respect of charges nos.1 and 7, JMP explains that he provided the relevant bank account records and payment slips (see Annexures C and D to the JMP 2^nd Statement) to the police, and such bank account records were admitted into evidence at the Criminal Trial.  JMP says there could never be a good reason for the payment of monies from clients in such way into such bank accounts.  “It was at the very least deliberate and professional misconduct”, and an attempt by the plaintiff to hide the payments by paying them into “friendly” accounts which he could control.  Additionally, the total payment of HK$100,000.00 (by Singh Jagraj) was quickly withdrawn by EPS in the sum of HK$3,000.00 on 11 February 2006, and by EPS, ATM and cash in the sums of HK$150.00, HK$4,000.00, HK$2,500.00 and HK$90,000.00 respectively on 13 February 2006.  JMP says the plaintiff apparently told the court that he spent HK$10,000.00 immediately as it was his fee, and then put forward “the not unusual ‘blaming others’ defence” by stating he had given HK$90,000.00 in cash to JMP in an envelop, which assertion the prosecution rejected as fabrication and which the magistrate specifically disbelieved in his Reasons for Verdict.  JMP claims that in any event the plaintiff either wrongly appropriated HK$100,000.00 (prosecution case) or HK$10,000.00 (his own disbelieved case), and both amount to misconduct.

162.  In appears however that, contrary to what has been said in the JMP 2^nd Statement, the magistrate did not appear to have expressly rejected the plaintiff’s suggestion that he had paid HK$90,000.00 to JMP in an envelop.  Rather, the magistrate raised a number of questions over the plaintiff’s evidence, which he considered to be “not without flaws”.  For example, the magistrate questioned why JMP would adopt such a troublesome way of getting an additional sum of HK$100,000.00 when all he needed to do was to increase the bill amount and deduct such sum from the recovered compensation before releasing the balance to Singh Jagraj.  He also found it peculiar that the defendant foresaw the need for someone to witness him passing HK$90,000.00 to JMP and to endorse on the withdrawal slip.  The magistrate found it odd that the plaintiff allegedly never saw a client’s bill or counsel’s fee note and never handled a receipt issued by the defendant firm in the 2 years and 8 months he worked for them as litigation manager.

163.  JMP explains that “[had] the magistrate been properly made aware of the documents and facts he would have been made aware of the fact that Mr Singh Jagraj, who is the victim, was told by his friend, Mr Mandeep Singh, that he could have been cheated by the [plaintiff] out of $100,000 and that the victim later returned to Hong Kong.  (This sum of $100,000 was in fact paid into the account of Begum Hameeda, who was the [plaintiff’s] Mother in law.)  When Mr Singh Jagraj later returned to Hong Kong to specifically deal with this dishonesty he made a short statement in [JMP’s] office prior to making a complaint at the Mongkok Police Station.  He later made a statutory declaration in the matter.  Additionally he stated in para 7 of his police statement the above information.”  The statement of Singh Jagraj dated 11 April 2006 given to the defendant, his statutory declaration dated 14 June 2006, and his statement to the police dated 11 April 2006 can be found in Annexure B to the JMP 2^nd Statement.

164.  But in the Reasons for Verdict, the magistrate expressed doubt and asked the rhetorical questions as to how JMP came to know the plaintiff cheated Singh Jagraj of the total sum of HK$100,000.00 and why JMP was looking for Singh Jagraj.  The magistrate sensed JMP’s strong resentment of the plaintiff, and he noted there was evidence that the complaints lodged with the police by the alleged victims were an “orchestrated effort” by JMP.  The magistrate “believed those clients of [JMP] were, to some extent, corralled into making allegations against the [plaintiff].  It all seems to [the magistrate] that [JMP] is overly anxious in getting the defendant convicted of criminal charges”.

165.  Indeed, JMP states in the JMP 2^nd Statement that he regards the plaintiff with distaste because of “the systemic dishonesty that he evinced not only in his accident but also with respect to his dishonesty with [JMP’s] clients, most of whom were vulnerable”.

166.  In the JMP 2^nd Statement, JMP explains that once clients have come forward with dishonesty allegations, he is duty bound under the Law Society rules to report the matter and to afford such clients all necessary help that they require.  In some cases, this meant liaising with the Law Society and the police, and making appointments for some clients. JMP objects to the word “corralled” coined by defence counsel at the Criminal Trial which the magistrate adopted.  “Had [JMP] been properly recalled to give evidence in [the Criminal Trial he] would have been able to dispel all of the later bare unsubstantiated allegations that were put forward by the [plaintiff], many months after all the prosecution witnesses had given evidence, which unfortunately appear to have muddied the waters.”

167.  In respect of charges nos.3-4, the magistrate in the Reasons for Verdict “finds there is a possibility that the [plaintiff] had lent money to [Hussain Tahir and Nawaz Malik Shan], and that the bank transfers made by them were to repay the [plaintiff]”.

168.  In the JMP 2^nd Statement, JMP claims that the plaintiff defended such charges on the basis that the sums involved (which were furtively paid into the bank account of the plaintiff’s mother-in-law and the bank account jointly held by the plaintiff and the Wife) were merely repayments by clients of loans given to them by the plaintiff.  The clients strenuously denied such allegation, but even if such allegation is true “this is misconduct that cannot be tolerated. A member of [JMP’s] staff should not lend money to a client under any circumstances”.

169.  JMP claims that the Criminal Trial was highly unusual. It was scheduled to begin on 10 September 2007 and the evidence opened on the following day.  The case was adjourned 9 times.  JMP as the final prosecution witness gave evidence on 7 January 2008.  The case was completed on 22 October 2008, some 13 months after it began.  JMP says that as the Criminal Trial was prepared and prosecuted by the police, he had `no control over the case, the evidence to be adduced or the plaintiff’s applications to adjourn the case.

170.  Item 6 of Table A also contains (a) the brief facts prepared by the police, (b) statements to the police by JMP, Singh Jagraj, Newaz Malik Shah and Hussain Tahir dated 13 April 2006, 11 April 2006, 4 June 2006 and 4 June 2006 respectively as well as the two statements to the police by the plaintiff dated 5 and 26 June 2006 respectively, (c) the written final submissions by counsel for the prosecution and the defence, and (d) the transcript of the closing submissions and Reasons for Verdict.

(c)  Wong 2^nd Affirmation

171.  According to the Wong 2^nd Affirmation, it is the defendant’s case that even without the Accident the plaintiff would have been dismissed by the defendant for his pre-Accident deliberate misconduct and/or dishonesty and/or misbehaviour.  The charges laid against the plaintiff and the Criminal Trial were examples of the plaintiff’s misbehaviour.  The plaintiff was not dismissed for his disabilities in performing his duties.  This is a relevant and necessary issue for the court in deciding on the plaintiff’s loss of earnings because if the court accepts the defendant’s above contentions, then the plaintiff would not have been able to earn as much as he alleged even without the Accident.  Such allegations, if true, will also affect his ability to find similar employment in the legal field.

(d)  Cheung 1^st Affirmation

172.  According to the Cheung 1^st Affirmation, although the defendant made various accusations in the JMP 2^nd Statement in relation to dishonest and/or criminal conduct on the part of the plaintiff and placed great emphasis on the Criminal Trial including criticising the way it was handled and describing how the plaintiff had acted dishonestly despite his acquittal, such accusations are completely irrelevant to the PI Action as they do not relate to the Accident in any way.  In any event, the plaintiff has been acquitted, and the defendant’s accusations of dishonesty are mere assertions without proof.  Mr KN Cheung says that under the rules of evidence, the defendant is not entitled to produce documentary or oral evidence to advance an irrelevant case only for the purpose of discrediting the plaintiff or his witness(es).  The inclusion of such unsubstantiated evidence will lead to and result in mini-trial on irrelevant incidents/matters which will unduly lengthen the trial and also prejudice a fair trial as they are scandalous and oppressive.

(e)  Evidence as to credit

173.  Mr Wong submits that the pleadings, statements and documentary evidence identified in paragraphs 147-148 above about the plaintiff’s alleged dishonesty/misbehaviour and the Criminal Trial may be relevant to the plaintiff’s general credibility even though they do not relate to the Accident, eg they may be relevant to the question of whether it is likely that the plaintiff has exaggerated the extent of his injuries.  On the other hand, Mr Shum says no useful inference can be drawn from the impugned matters in respect of any allegation of exaggeration of injuries.

174.  Mr Shum submits that under the general rules of evidence a party is not entitled to produce evidence, documentary or oral, to contradict the answers or statements of the other party’s witness(es) to advance an irrelevant case only for the purpose of discrediting the other party.  The inclusion of such irrelevant evidence only serves to prejudice the trial judge’s impression and lengthen the trial unnecessarily.

175.  In Christie v Christie (1873) LR 8 Ch App 499, Sir G Mellish LJ said at p.506 that “[our] law …… does not allow you to prove that a man has bad character for the purpose of shewing that because he has a bad character it is probable that he will have committed a certain crime”.  Lord Selborne VP said at p.505 that:

“…… [to] put into a bill a statement that at some time or other a serious charge was made against a Defendant at a police office, and reported in certain terms in a newspaper, without alleging the charge was true, cannot be justifiable, even if the charge, being true, would have been admissible. But even if it had been true, here it would have been utterly immaterial, and in my opinion the whole history of the life of this Defendant from the day he was born might have been introduced into the bill with as much justification and reason as the allegations now in question”.

176.  In Sun Legend Investments Limited v Ho Yuk Wah David & ors FACV 14/2010 (unreported, 31 May 2011), a solicitor firm sued a group of clients for services rendered.  The main issue to be determined was the terms of the retainer and in particular the arrangement regarding the payment of solicitors’ costs and disbursements.  Little turned on the question of credibility affecting the main individuals of the case, but at trial much of the evidence put before the court concerned just that, particularly the 1^st appellant’s credibility as a witness.

177.  The trial judge held that the issue was simply one of credibility and on such basis allowed a “concerted attack” to be mounted on the 1^st appellant’s character with evidence adduced for such purpose.  Of particular note, evidence as to the two wholly unrelated actions where the 1^st appellant was sued as defendant was adduced, and evidence was led that he had fled the jurisdiction and resided in Beijing to avoid his Hong Kong creditors in wholly unrelated suits.  The trial judge eventually concluded that such evidence did not affect the 1^st appellant’s credibility.  But in the Court of Appeal, Rogers VP (with whom Le Pichon JA agreed) said that had the trial judge given proper consideration to the matter, he would inevitably have come to the view that the 1^st appellant was devious, given to raising moonshine defences, and prepared to go to any length of disgracing himself and his profession to avoid his legitimate creditors.

178.  Litton NPJ disagreed with such approach and made the following observation:

“ 57. ……A civil case is a trial of the issues as put before the court. It is not a trial of the character of the parties. This is a matter beyond the scope of analysis in a court of law.

58. Courts have always been wary of cross-examination of witnesses as to credit. Generally speaking evidence of facts and circumstances to show the disposition of a party is inadmissible: see Sankey LJ in Hobbs v. Tinling [1929] 2 KB1 at 50. Far less is it permissible to have the labels “devious character” “coward” etc. created in unrelated proceedings attached to the parties before the court.””

179.  Put on the basis of Mr Wong’s submissions referred to in paragraph 173 above, the impugned matters are essentially character evidence that goes to credit. But the authorities show that one cannot impeach a witness’ credibility by adducing evidence as to discreditable acts unconnected with his testimony (see Cross and Tapper on Evidence 12^th ed p.354).

180.  Further, if the matter is only relevant to credit, the general rule is that evidence may not be adduced to rebut the witness’ denial under cross-examination.  In Hobbs v Tinling [1929] 2 KB 1, 18-19, Scrutton LJ said as follows:

“…… When a witness has given evidence material to the issues in the case you can cross-examine him on matters not directly material to the case in order to ask the jury to infer from his answers that he is not worthy of belief, not a credible person, and therefore that they should not accept his answers on questions material to the case as true. This is cross-examination as to his credibility, commonly called cross-examination to credit. But as it is on matters not directly material to the case, the party cross-examining is not allowed to call evidence in chief to contradict his answers. To permit this would involve the Court on an interminable series of controversies not directly material to the case on alleged facts of which the witness had no notice when he came into Court, and which he or the party calling him might not be prepared without notice to meet. ……” (see also Sankey LJ at p.50)

Still further, the trial judge has a duty to prevent questioning of an unduly offensive, vexatious or embarrassing character, and to prevent the process of the court from being abused by torturing witnesses with oppressive cross-examination.  Order 1B rule 1(2)(j) of the RHC confers powers on the court to control the evidence to be adduced, including the discretion to disallow cross-examination on evidence of bad character.

181.  Therefore, even if cross-examination of a witness is allowed at trial about discreditable matters (and it will not be so allowed if there is a substantial disproportion between the importance of the imputation against the witness’ character and the importance of the evidence to the issue to be decided), the court will not be inclined to allow rebuttal on witness’ denial on collateral matters as to credit especially if the rebuttal is time-consuming and inconclusive.

182.  But here the defendant is not even adducing rebuttal evidence in response to any witness’ denial on matters as to credit.  They are in fact taking the proactive step of adducing witness and documentary evidence on matters of credit in support of their own positive defence case, and thereby calling upon the plaintiff to meet such defence case with pleadings and evidence.  In my view, this is impermissible.  I am not persuaded that the defendant is entitled to plead and/or adduce the averments and evidence identified in paragraphs 147-148 above on the basis that they may be relevant to the general veracity of the plaintiff.

(f)  Defendant’s case on direct relevance

183.  However, the defendant and Mr Wong go further.  They contend that the impugned materials are directly relevant to the defendant’s case on the issue of quantum.  Mr Wong submits that the court will have to determine the plaintiff’s post-Accident earnings for the purpose of assessing his claim for loss of earnings, and the impugned pleadings, statements and evidence in relation to the plaintiff’s alleged dishonesty/misbehaviour and the Criminal Trial are directly relevant to such claim for loss of earnings, and therefore should not be struck out for being scandalous and irrelevant to the issues in the assessment of damages.

184.  Mr Wong assures me that the defendant does not rely on the impugned materials (and in particular the documents relating to the Criminal Trial) to show that the plaintiff had been dishonest, but rather such pleas and evidence are for the limited purpose of showing that the plaintiff would have been dismissed by the defendant even without the Accident.  The relevant events covered by the Criminal Trial took place between 19 October 2005 and 10 February 2006 (ie shortly before the Accident).  Mr Wong submits that given the proximity in time and the subject matter of dishonesty/ misbehaviour, the materials relating to the Criminal Trial and the magistrate’s observations in the Reasons for Verdict will be helpful to the court in the PI Action in deciding whether it is more probable than not that the plaintiff would have been dismissed even without the Accident, which factor Mr Wong argues is relevant in demonstrating that the plaintiff would not have been able to maintain the level of post-Accident earnings as alleged.  Mr Wong says the defendant’s assertion that they would have dismissed the plaintiff for dishonesty/misbehaviour is not a mere afterthought, but whether it is so or not is a triable issue to be decided at the PI Trial.

185.  Mr Wong further argues that the events being the subject matter of the Criminal Trial would have an adverse effect on the plaintiff’s reputation amongst his fellow countrymen, and that the documents pertaining to the Criminal Trial indicate that his fellow countrymen suspected he had deceived them so fewer of them would approach him for assistance.

186.  Mr Wong submits that it will not be necessary to go into every matter concerning the Criminal Trial, and item 6 of Table A (including the transcript of the closing submissions and the Reasons for Verdict in respect of the Criminal Trial) is merely to ensure that all relevant and necessary documents in relation to the Criminal Trial are available if the trial judge in the PI Action wants to look into any aspect thereof.  Mr Wong reminds that the plaintiff was acquitted in the Criminal Trial, so the court in the PI Action will not be able to appreciate the full extent of the allegations without the charges sheets, police statements, trial transcript, Reasons for Verdict and/or other documents relating to the Criminal Trial.

(g)  Plaintiff’s case on irrelevance

187.  Mr Shum submits that the Answer (which avers that even without the Accident the plaintiff would have been dismissed in April 2006 or not later than 1 April 2006 – see paragraph 32(d)-(e) and 150-151 above) and the JMP 2^nd Statement (which alleges that even without the Accident the plaintiff would have been dismissed on 11 March 2006 – see paragraph 150 above) is inconsistent.  But in any event such allegations are irrelevant because the undisputable fact is that the plaintiff was injured as a result of the Accident.  There is also objective evidence of loss of earnings (since the plaintiff could not return to his previous work due to injury to the right wrist) and loss of earning capacity from the expert medical reports and the certificate of assessment by the medical board as confirmed in the EC Judgment.

188.  Mr Shum submits that since the plaintiff’s loss flowed from the injuries he suffered as a result of the Accident, it does not lie in the defendant’s mouth to say with hindsight or as afterthought that based on the quarrel on 11 March 2006 and/or the alleged acts of dishonesty/misbehavior the plaintiff (who was eventually charged but acquitted on all counts) would have been dismissed in any event with the result that there would have been no loss of earnings or that such loss would have been reduced.

189.  Mr Shum says Mr Wong’s suggestion that the plaintiff’s reputation may be adversely affected is merely an inferential suggestion without any substantial proof.  It is purely speculative whether the plaintiff’s countrymen would not trust him when he was in fact acquitted of all criminal charges after a lengthy trial during which he called witnesses who were also his countrymen to give evidence on his behalf.

190.  Mr Shum submits that the allegations of dishonesty/ misbehaviour are merely peripheral or collateral matters not directly relevant to the issues in dispute, hence their probative value is minimal and they are nowhere near the threshold of being close to being conclusive for admission as evidence in the PI Trial. I note that in the EC Trial the plaintiff was not cross-examined or re-examined on matters in respect of the Criminal Trial (see pages 188L-189K of the transcript of the EC Trial).

191.  Mr Shum further submits that the defendant has placed a great deal of emphasis on the Criminal Trial including finding fault with the way it was handled, which echoes the magistrate’s observation in the Reasons for Verdict that JMP was overly anxious in getting the defendant convicted of criminal charges.  If the impugned materials are to be adduced at the PI Trial, such allegations in the JMP 2^nd Statement will result in mini-trial of irrelevant incidents/matters, thereby unduly and disproportionately lengthening the trial.  Further, even though the plaintiff has already cleared his name in the Criminal Trial, he would be troubled to do so again in the civil PI Trial by having to answer and adduce evidence to refute these allegations, which would be a repeat of the Criminal Trial for a purpose wholly unrelated to the subject matter of the PI Action.  Mr Shum submits that the inclusion of such unsubstantiated evidence and the plaintiff’s inevitable response will mask the real issues of the case and prejudice a fair trial.  The PI Trial should be a civil trial of issues and not of character.  Even if the defendant wishes to test the plaintiff’s credibility, they must do so with evidence that is relevant to the actual issues in the case otherwise the finality principle applies.  Mr Shum submits that this is a classic case of oppression in which the defendant seeks to introduce evidence on discreditable acts in order to taint the plaintiff’s character.

(h)  Legal principles: assessing loss of earnings

192.  As seen in paragraphs 187-188 above, Mr Shum submits that once it is established that the plaintiff suffered injuries and consequent loss of working ability as a result of the Accident, the plaintiff is entitled to recover loss of earnings and/or loss of earning capacity which flow from the Accident, and hence any suggestion that even without the Accident he would have been dismissed by the defendant for other reasons is quite irrelevant.  On the other hand, Mr Wong submits that such consideration remains relevant because it shows that even without the Accident the plaintiff would not have been able to earn as much as he claimed, and this will adversely affect his claim for loss of earnings and/or loss of earning capacity.

193.  However, neither Mr Shum nor Mr Wong has cited any authority to support their respective proposition.  In Kemp & Kemp The Quantum of Damages Vol.1 para.10-003 at p.10003, it is said that “[if] for some reason the claimant, apart from his injuries, would probably not have been able to earn money, the court must take this fact into account and make a finding as to what the claimant’s earnings would probably have been”.  Likewise, in Butterworths Personal Injury Litigation Service Vol.1 at para.[5023], it is said that “if substantial redundancies/job losses have since occurred in the company which employed the claimant, there will be doubt about the continued receipt of earnings had the accident not taken place”.

194.  In my view, ultimately the relevant questions that arise on the claim for financial loss suffered as a result of inability to work due to injuries caused by an accident are (a) what did the injured person lose as a result of the accident and (b) what are the earnings he would have received but which by reason of the accident he can no longer get.  Even though the suggested subsequent amelioration is not based on events that actually happened but on what the defendant says would have happened, at this interlocutory stage of the proceedings I am not persuaded that I should dismiss such argument.

195.  In the circumstances, I am not persuaded that the defendant’s allegation that the plaintiff would not have been able to notionally earn as much as he claims since he would have been dismissed in March/April 2006 can be brushed aside as being legally impermissible.  I now turn to the legal principles for determining whether the impugned pleas and evidence ought to be allowed.

(i)  Legal principles: admissibility of evidence as to other misconduct

196.  However, there can be no doubt that the alleged dishonesty/ misbehavior and the events covered by the Criminal Trial do not directly concern and/or relate to the Accident.  Indeed, it is the defendant’s case that even without the Accident the plaintiff would have been dismissed due to the alleged dishonesty/misbehavior.  What are the legal principles governing the admissibility of evidence as to other misconduct?

197.  Any evidence, including evidence of other impropriety, to be admissible must be relevant. Contested trial lasts long enough as it is without spending time on evidence which is irrelevant and cannot affect its outcome.  Relevance must and can only be judged by reference to the issues in which the court is called upon to decide (see O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038, 1040).

198.  The House of Lords in O’Brien adopted a two-stage test of admissibility.  Admissibility turns firstly on the test of simple relevance (ie whether the evidence of other misconduct is logically probative or disprobative of some issue or matter which requires proof) (see Lord Denning MR’s view in Mood Music Publishing Co Ltd v de Wolfe Publishing Ltd [1976] Ch 119, and O’Brien at p.1054 per Lord Phillipps).

199.  The line between evidence that goes to the issue and evidence which goes only to credit is one which is not easy to draw. Character evidence may be relevant because the character of a person in some respect is itself a principal fact in issue (eg where a defence of justification is raised in an action for defamation).  Alternatively, although the person’s character is not itself a principal fact in issue, the character evidence is relevant to some other fact in issue (eg whether a person with conviction for child molestation is fit to have custody of his child).  The question then arises as to whether the character evidence in question is sufficiently probative to meet the ordinary requirement of legal relevance.

200.  The second-stage test turns on discretionary exclusion which is now provided for in Order 1B rule 1(2)(j) of the RHC (see O’Brien at p.1041 per Lord Bingham).  This requires the case management judge or trial judge to make a finely balanced judgment as to whether the evidence of other misconduct or some of it (and if so which parts of it) which ex hypothesi is legally admissible should be admitted.

201.  In O’Brien, Lord Bingham said at pp.1041-1042 as follows:

“While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. …… Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. …… In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”

202.  Lord Phillips said at pp.1054-1055 as follows:

“ 55. …… Evidence of impropriety which reflects adversely on the character of a party may risk causing prejudice that is disproportionate to its relevance, particularly where the trial is taking place before a jury. In such a case the judge will be astute to see that the probative cogency of the evidence justifies this risk of prejudice in the interests of a fair trial.

  56.     Equally, when considering whether to admit evidence, or permit cross-examination, on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition.  He will consider whether the evidence in question is likely to be relatively uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees. ……”

203.  Under Order 1B rule 1(2)(j) of the RHC, the court under its general power of management may exclude any issue from consideration.  Such provision is expressed in the broadest of terms, and the source of the court’s discretion is its power to control its own proceedings.  The court has to give effect to the underlying objectives to deal with the case justly, which includes keeping the case within proportionate and manageable bounds and dealing with it in a manner that is expeditious and fair so as to ensure that the judge is not distracted from the central task.  The Civil Justice Reform also requires the court to actively manage cases in order to further the underlying objectives.  This power expressly enables the court to exclude evidence that would otherwise be admissible and to limit cross-examination.

204.  In Amy So v Tony Chiu Yun Kan & ors CACV 212/1994 (unreported, 17 March 1995), Godfrey JA (with whom Nazareth VP and Bokhary JA (as he then was) agreed) said it was necessary to draw distinction between evidence having a direct relation to the principal question in dispute and evidence relating to collateral facts which will, if established, tend to elucidate that question. “ …… [To] make the latter admissible the party tendering the evidence must satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute and also to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive. ……” (para.33)

(j)  Discussion

205.  To determine whether the impugned pleadings, statements and evidence are admissible or not, it is necessary to first identify the issue(s) in question.  It is evident from Mr Wong’s submissions (see paragraphs 183-186 above) that the issues are twofold, ie whether (a) the defendant would have dismissed the plaintiff in March/April 2006 and (b) fewer countrymen would have approached the plaintiff for assistance which would impact on the plaintiff’s claim for loss of earnings and/or loss of earning capacity.

206.  Mr Wong emphasises that the defendant does not rely on the impugned materials to demonstrate that the plaintiff had been dishonest (see paragraph 184 above).  He also acknowledges that it is unnecessary to go into every aspect of the impugned materials, but says they should be available in case the trial judge in the PI Action wants to look into any aspect to appreciate the defendant’s allegations (see paragraph 186 above).

207.  In light of the defendant’s stance as explained by Mr Wong in the above paragraph, I find paragraphs 4-6 of the JMP 2^nd Statement (item 4 of Table A) are not relevant to the disputed issues.  As Mr Shum submits, the whole tenor and purport of these paragraphs in the JMP 2^nd Statement (see paragraphs 155, 157, 159, 161, 163, 165-166 and 168-169 above) is to find fault with the way the Criminal Trial was handled (eg JMP criticises (a) the reasons for multiple adjournments of the Criminal Trial, (b) the magistrate’s query over the presence of Mr B Wong at the Criminal Trial, (c) the prosecution’s failure to re-call JMP as prosecution witness to clarify the allegedly unsubstantiated allegations of the plaintiff, (d) the submissions made by defence counsel at the Criminal Trial, and (e) the acquittal by the magistrate in face of what JMP describes as obvious dishonesty, wrongful misappropriation and deliberate misconduct on the part of the plaintiff) and to give reasons why he was surprised by the magistrate’s acquittal of the plaintiff. Such revisiting of the Criminal Trial plainly contradicts Mr Wong’s disavowal of any intention to go into all aspects of the Criminal Trial and/or to show that the plaintiff was in fact dishonest (see the above paragraph).  In my view, paragraphs 4-6 of the JMP 2^nd Statement (item 4 of Table A) are not probative or relevant in the sense that they cannot affect the outcome of the PI Action.

208.  Further, the Answer pleads that the plaintiff would have been dismissed “in about April 2006” and “not later than 1^st April 2006” (see paragraphs 32(d)-(e) and 150-151 above).  But paragraph 2 of the JMP 1^st Statement states that the plaintiff would have been dismissed on 11 March 2006 (see paragraph 150 above), which does not sit well with the defendant’s pleaded case.  Be that as it may, in respect of the issue of whether even without the Accident the plaintiff would have been dismissed by March/April 2006, in my view JMP would only have been exercised by knowledge of any impropriety acquired in or before April 2006.  Information that was acquired and/or events that happened after April 2006 (including the police investigation after March/April 2006 and/or the Criminal Trial in 2007 to 2008) cannot have any bearing on any decision that JMP might have made in March/April 2006 to dismiss the plaintiff irrespective of the Accident.  This is reinforced by Mr Wong’s submissions that the defendant’s purpose in adducing the impugned materials is not to show that the plaintiff had been dishonest but rather to demonstrate whether JMP’s discoveries in March/April 2006 in respect of the plaintiff’s alleged improprieties would have caused him to dismiss the plaintiff.

209.  Hence, I am unable to see how the impugned materials identified in paragraph 148 above and the preamble and sub-paragraphs (i)-(ii) in paragraph 21 of the JMP 1^st Statement (see paragraph 147(b) above, which refer to information/documents concerning the Criminal Trial that came into existence after April 2006) other than the following are relevant to and/or probative or disprobative of the above issue:

(a)  6^th sentence of the preamble in paragraph 21 of the JMP 1^st Statement (ie “I would not have continued to employ him and thus would not have increased his wages.”) (part of item 2 of Table A);

(b)  statement by Singh Jagraj dated 11 April 2006 and statement by Singh Jagraj to the police dated 11 April 2006 in Annexure B of the JMP 2^nd Statement (part of item 5 of Table A);

(c)  copy extracts of bank records and payment slips in Annexure C of the JMP 2^nd Statement (part of item 5 of Table A);

(d)  statement by JMP to the police dated 13 April 2006 and statement by Singh Jagraj to the police dated 11 April 2006 (part of item 6 of Table A).

210.  Taking the matter further, are the impugned materials logically relevant to the further issue as to whether the other misconduct canvassed in the Criminal Trial would have so damaged the plaintiff’s reputation amongst his countrymen that fewer of them would have approached the plaintiff for assistance with consequent adverse impact on his claim for loss of earnings?  I agree with Mr Shum that such submission is merely speculative, especially when at the Criminal Trial (a) the plaintiff had no case to answer on two counts and was acquitted on the remaining four counts, and (b) four fellow countrymen gave evidence for him.  The prosecution and defence witnesses in the Criminal Trial were “equalised” in the sense that the magistrate found them all to be evasive in respect of certain aspects of their evidence.  I bear in mind Godfrey JA said in Amy So that a collateral fact, when established, must be shown to be capable of affording a reasonable presumption or inference as to the matter in dispute and will need to be reasonably conclusive in order to be admissible.  In my view, the impugned materials are nowhere close to such threshold to justify admission.

211.  But given my conclusion in paragraph 195 above, it appears that (a) paragraphs 7-10 of the Answer (item 1 of Table A) and (b) the 5^th sentence in paragraph 2, paragraph 4 and the 6^th sentence of the preamble in paragraph 21 of the JMP 1^st Statement (item 2 of Table A) are able to meet first limb of the two-stage test in O’Brien.  Such parts of the pleadings and statement deal with the circumstances of the alleged quarrel between the plaintiff and JMP on 11 March 2006 and JMP’s discoveries in March/April 2006 in respect of the plaintiff’s alleged misconduct/misbehaviour which the defendant claims would have led to the plaintiff’s dismissal even without the Accident.

212.  The question is whether such impugned pleadings/statement should be excluded under the second-stage test based on whether prejudice to the plaintiff and/or other ills caused by their admission (if any) will be disproportionate to their relevance and thus unbalance the PI Trial.  I have carefully considered the factors discussed in O’Brien (see paragraphs 200-203 above), but at this interlocutory stage of the proceedings I do not envisage that focused pleadings/evidence within the narrow time window of March/April 2006 will distort or delay the PI Trial or cause irremediable unfair prejudice to the plaintiff.  It is true that the plaintiff may need to respond to such averments and statement, but I am not persuaded that the plaintiff will be excessively burdened.  Whilst economy and expedition are laudable underlying objectives, the court also needs to deal with the case justly.  I am not persuaded that at this interlocutory stage of the PI Action I should strike out such parts of the pleadings/statement identified in paragraphs 209(a)-(d) and 211(a)-(b) above.  But the disputes between the parties may be further or better elucidated as the PI Action progresses, and the case management judge or trial judge is not precluded from reconsidering whether these remaining pleadings/evidence should in due course be adduced at the PI Trial.

213.  As for the 1^st sentence in paragraph 20 of the JMP 1^st Statement (item 19 of Table B), which states that “[the] Plaintiff left [JMP’s] firm as detailed in paragraph 10 above [ie the quarrel between the plaintiff and JMP on 11 March 2006]”, it should not be struck under the Issue Estoppel Application since there is no finding in the EC Judgment in respect of such matter.

214.  In the circumstances, the following are liable to be struck out:

(a)  the preamble and sub-paragraphs (i)-(ii) in paragraph 21 of the JMP 1^st Statement except the 6^th sentence (ie “I would not have continued to employ him and thus would not have increased his wages.”) (item 2 of Table A);

(b)  paragraphs 4-6 of the JMP 2^nd Statement (item 4 of Table A);

(c)  Annexure B of the JMP 1^st Statement (item 3 of Table A);

(d)  Annexure A of the JMP 2^nd Statement (item 5 of Table A);

(e)  Annexure B of the JMP 2^nd Statement except (i) statement of Singh Jagraj dated 11 April 2006 and (ii) statement by Singh Jagraj to the police dated 11 April 2006 (item 5 of Table A);

(f)   Annexure C of the JMP 2^nd Statement except copy extracts of bank records and payment slips (item 5 of Table A);

(g)  Annexure D of the JMP 2^nd Statement (item 5 of Table A);

(h)  all documents relating to the Criminal Trial except (i) JMP’s statement to the police dated 13 April 2006 and (ii) statement by Singh Jagraj to the police dated 11 April 2006 (item 6 of Table A).

XXI.  CONSEQUENTIAL APPLICATION: PARAGRAPHS 5-6 OF MA 2^ND STATEMENT

215.  In my ruling in Part XX above, I have not acceded to the plaintiff’s application to strike out all of the impugned pleadings, statements and evidence identified in paragraphs 147-148 above.  In allowing some parts of the impugned pleadings, statements and evidence to remain, in all fairness the plaintiff should be given an opportunity to respond thereto.  In the circumstances, I have no hesitation in saying that the 1^st sentence of paragraph 5 of the MA 2^nd Statement (which asserts that the complaints to the police as assisted by the defendant are irrelevant) should not be removed.  However, a different approach should be adopted in respect of the remaining 2^nd to 5^th sentences in paragraph 5 and the whole of paragraph 6 of the MA 2^nd Statement.

216.  Broadly speaking, I have disallowed the defendant from adducing pleadings, statements and evidence on matters after March/April 2006 concerning the plaintiff’s alleged improprieties on the basis of irrelevance and discretionary exclusion (see Part XX(j) above).  After all, it is the defendant and not the plaintiff who has put forward the plea and averment that they would have dismissed the plaintiff in March 2006/April 2006 irrespective of the Accident and they have not established the relevance of the post-April 2006 events/matters.

217.  The plaintiff should have an opportunity to consider whether and if so how to respond to the state of the defendant’s pleadings, statements and evidence as currently permitted by the court.  In the circumstances, the plaintiff should decide whether to retain or remove the remaining 2^nd to 5^th sentences in paragraph 5 and the whole of paragraph 6 of the MA 2^nd Statement.  If the plaintiff chooses to retain these passages in the MA 2^nd Statement, which deal with the Criminal Trial and the Reasons for Verdict (ie events that have occurred after April 2006), on the basis that they are material evidence in response to the defendant’s contention that even without the Accident he would have been dismissed in March/April 2006, then the defendant should have an opportunity to apply to the court for leave to adduce evidence in rebuttal.  After all, although the post-April 2006 events cannot be part of the defendant’s primary defence case, then depending on whether the evidence raised by the plaintiff in response thereto goes beyond March/April 2006, it is possible (and I say no more) that the defendant may need to adduce evidence in fair rebuttal.

XXII.  INADMISSIBILITY APPLICATION: RECORDINGS AND RECORDINGS TRANSCRIPT

218.  Under the Inadmissibility Application, the plaintiff applies to strike out the following:

(a)  7^th to 9^th sentences of paragraph 22 of the JMP 1^st Statement (item 2 of Table A);

(b)  paragraph 9 of the JMP 2^nd Statement (item 4 of Table A);

(c)  the Recordings (item 7 of Table A);

(d)  the Recordings Transcript (item 8 of Table A);

(e)  the Affirmation of Neena Pushkma dated 15 October 2010 exhibiting the Recordings and the Recordings Transcript (item 9 of Table A);

(f)   certain parts of the statements and witness statements of Mr Nasir, Mr Hu, Mr Mustafa, Mr Rongzaib and Mr B Wong (Items 10-17 of Table A).

(a)  Impugned materials

219.  In summary, the defendant seeks to adduce as evidence in the PI Action various CD/DVD video recordings made on 21, 28 and 30 December 2009 (being the Recordings) and on 20 January 2010 and the transcript of the Recordings (being the Recordings Transcript) and of the recording made on 20 January 2010 certified by Neena Pushkma who is a registered High Court interpreter of the Punjabi dialect.  The defendant also seeks to adduce as evidence in the PI Action the statements and witness statements given by Mr Nasir, Mr Hu, Mr Mustafa and Mr Rongzaib as well as the witness statement of Mr B Wong.  All of the above evidential materials concern an undercover operation on the plaintiff by these persons. Indeed, the JMP 1^st and 2^nd Statements also describe such undercover operation.  For the avoidance of doubt, the plaintiff does not seek to strike out those parts of the statements and witness statements of Mr Nasir, Mr Hu, Mr Rongzaib and Mr B Wong and the recording and transcript thereof insofar as they relate to the meeting on 20 January 2010.

220.  According to the impugned materials, in/about late November Mr Mustafa (who joined the defendant as a clerk in June 2009) requested Mr Nasir to participate in an undercover operation with the plaintiff as target.  Mr Nasir telephoned the plaintiff by posing as a potential client seeking assistance and advice in respect of a work injury.  He met the plaintiff on 4 and 8 December 2009.  According to Mr Nasir, on the latter occasion the plaintiff’s colleague at KBC wrote out a legal aid application on Mr Nasir’s behalf, and the plaintiff completed it by using his right hand.  The plaintiff quite fairly does not seek to strike out such part in Mr Nasir’s 1^st statement and 1^st witness statement that deal with these matters.

221.  Mr Nasir claims that a decision was made to video/sound record subsequent meetings.  Mr B Wong (who joined the defendant as a clerk in 2005) was asked to liaise with Mr Hu (a private investigator) who would provide the undercover persons with recording devices.  On 21 December 2009, Mr Nasir together with Mr Mustafa and another friend Usman Mohammad (“Mr Usman”) went to see Mr Hu who taught him how to operate the video recording device.  Mr Nasir went with Mr Usman to KBC’s offices and started recording.  Mr Nasir introduced Mr Usman as a possible client for work injury claim.  They met with the plaintiff and a Chinese solicitor for a short while, and they were then left with the plaintiff who, according to Mr Nasir, gave them advice.  The plaintiff then took them to the offices of the Legal Aid Department to complete some formalities during which time the recording device was switched off.  Mr Nasir and Mr Usman then parted with the plaintiff and returned the recording device to Mr Hu through Mr Mustafa. Mr Hu then produced a DVD record, and on 22 December 2009 a representative from the defendant collected a copy thereof.

222.  According to the Recordings Transcript for 21 December 2009, it appears that after Mr Nasir and Mr Usman met with a solicitor at KBC’s offices, the plaintiff brought them to another room.  They discussed about the circumstances of Mr Usman’s accident with the forklift, his previous approach to a clerk with another solicitors’ firm, the need to submit certain documentation to the Labour Department, and the benefit of having an independent witness.

223.  According to such Recordings Transcript, Mr Usman told the plaintiff his sick leave had not been extended and he thought he could not return to the hospital because the clerk with another solicitors’ firm kept his papers.  The plaintiff told Mr Usman to “…… go to the hospital again and tell them your foot is painful. Start your sick leaves again. Let me tell you one thing.  If you don’t have enough sick leaves then nothing can happen.  You should at least have sick leave up to 6 to 7 months continuously from hospital. ……” and to “…… go to the hospital and start his sick leave or else he will be stuck ……”  The plaintiff told Mr Nasir to get Mr Usman “admitted in the hospital.  His case is half ruined.  He still has time.  If he wants to get benefit he needs to get his sick leave started”.  As for Mr Nasir’s own case, the plaintiff told him to “[continue his] sick leaves for 6 to 7 months more” and the conversation continued as follows:

“[Mr Nasir]: More sick leaves?

[plaintiff]: Yes.

[Mr Nasir]: At least how many sick leaves should I have?

[plaintiff]: About 1 to 1½ years.

[Mr Nasir]: I already have 5 to 6 months.

[plaintiff]: Tell them you have broken your arm.

[Mr Nasir]: Ok, I’ll tell them that.

[plaintiff]: I will teach you what to say.

[Mr Nasir]: Alright.

[plaintiff]: But I can’t come you.

[Mr Nasir]: You don’t need to come. I have a guy.

[plaintiff]: I have another problem. Because of my own case, I can’t come with you. You remember the other day, I called a Sikh guy to fill in your forms?

[Mr Nasir]: Yes.

[plaintiff]: Why did I ask him?  Because I have my own problems.  I will take him to legal aid and get forms submitted if I can or else I’ll take his forms. ……”

224.  According to the Recordings Transcript, the plaintiff then referred to a case he handled for a person called Shabbir (who sent Mr Nasir to the plaintiff).  The plaintiff said that as Shabbir’s case was ending:

“…… I got into a fight with my boss. In the fight this (Note: [the plaintiff]) looks at his right hand) got injured. The Englishman’s 3 ribs got fractured. I punched and kicked him. Shabbir’s case ended and Shabbir told me my friend $800,000 is enough. I have received HK$900,000.00 already. I told Shabbir that I will get him HK$1.5 millions. Whatever he get above that is mine. He said ok. The case ended at $1.75 millions and he gave me $250,000.00. At least one should do some work. You should ask the client how much he wants. If a person pays you $100 and you tell him I will get you $24. At least he should be doing something. Not that at the start of the cases, he talks about percentage. He just says I take this much without doing any work”.

225.  The plaintiff also talked about the Accident as follows:

“…… [my boss] is such a good person. He is an amazing lawyer. This guy helped me to get 3.7 millions. Add 7 millions claim he is still missing. My salary was $60,000. I have become disabled on my right hand. I can’t close my hand. I can’t move my wrist up or down. I can’t even make a fist. That’s how good this lawyer is. ……”

226.  On 28 December 2009, Mr Nasir picked up a video recording device from Mr Hu and went with Mr Majid Manzoor to meet the plaintiff and Mr Ishtiaq.  Mr Nasir switched on the recording device.  They were brought to the offices of Messrs Jal N Kharbari & Co to meet a Chinese solicitor/clerk for whom the plaintiff acted as interpreter. Such solicitor/clerk recognised Mr Nasir from previous experience (ie from Mr Nasir’s previous case that was placed with such clerk/solicitor but was later transferred to the defendant firm for handling) and informed the plaintiff of his possible connection with the defendant.  The plaintiff became suspicious and aggressive, and Mr Nasir switched off the recording device.  He later returned the device to Mr Hu through Mr Mustafa.  Mr Hu then produced a DVD record, and on 29 December 2009 a representative from the defendant collected a copy thereof.

227.  According to the Recordings Transcript for 28 December 2009, the plaintiff said he worked for two companies:

“[plaintiff]: That day I told you at my lawyer’s office that even if I ask you for money, then you tell the lawyer that [the plaintiff] is asking for $100 or $500, what is the matter?

[Majid Manzoor (a friend of Mr Nasir)]: That’s right.

[Mr Nasir]: That’s good. I ask that guy ……

[plaintiff]: I work for 2 companies.

[Mr Nasir]: 2 companies?

[plaintiff]: Yes.”

228.  As regards Mr Nasir’s legal aid application, the plaintiff asked Mr Nasir about his witness.  Mr Nasir said no one was working with him at the time of the accident, and then the conversation continued as follows:

“[plaintiff]: I understand, I understand no-one was working, I know. But you make up one, who is going to benefit?

[Mr Nasir]: OK, I’ll make up one.

[plaintiff]: What shall I write on the form? Or should I wait? I am asking you if you know that within a certain time you can make up a witness, then you wait because we need to write here. It’s written here, name of the witness, telephone number of the witness, and address of the witness. Think about this very carefully before you do this. I am explaining this to you as you are uneducated, so you can understand each and everything.

[Mr Nasir]: I have a guy, you write his name, I will make him say.

……”

229.  In the Recordings Transcript, the plaintiff referred to JMP as his “biggest enemy”, and said “[that] white man ……assaulted him.  My hand was disabled there.  I used to work for him. I worked there for 5 years. ……”

230.  On 30 December 2009, Mr Nasir and Mr Rongzaib respectively picked up a video recording device from Mr Hu.  Mr Nasir, Mr Usman and Mr Rongzaib went to meet the plaintiff and Mr Ishtiaq at the offices of the Legal Aid Department.  After staying there for 20 minutes, they went to a nearby McDonald Restaurant where the plaintiff appeared very suspicious.  Mr Nasir and Mr Rongzaib later left and respectively returned the recording device to Mr Hu.  Mr Hu then produced a DVD record, and on 4 January 2010 a representative from the defendant collected a copy thereof.

231.  According to the Recordings Transcript for 30 December 2009, the plaintiff referred to the EC Action and the EC Judgment and his quarrel with JMP as follows:

“[plaintiff]: …… That Englishman you were with or are with, I had assaulted that Englishman 4 and a half years ago.

[plaintiff]: I was his employee. I was his manager. I was injured on my right hand. I was disabled on my right hand. I can’t close my fist or hold anything. I had a case against that Englishman. I won against him and I got 2.1 millions through the court and the case is appealed and is still going on. The reason I told you this is because someone might say that this guy is a cheat. The government won’t spare. I am available for you, I will try my best on whatever I can do for you. I advise you one thing. You get nil or $100,000 but you will get it directly. The reason I brought you here is because legal aid will give you a lawyer for free.

……

[plaintiff]: if you don’t believe me, all these doors are open you can ask them. I myself have legal aid. My lawyers are fighting for me against that Englishman. They will only deduct $50,000 or $30,000 but will at least give me $2 million. But if someone asks you for 20% or 25% that’s cheating. This is illegal. ……”

“[plaintiff]: Come with me or not, you yourself go to Chung King Mansion, there is a Bismillah Hotel, right?

[Mr Nasir]: Yes.

[plaintiff]: there is a fair guy called Shah?

[Mr Nasir]: Yes.

[plaintiff]: I fought for his case. He got 2.4 millions and that’s why I had a fight with John and that there were problems.”

232.  The Recordings Transcript for 30 December 2009 also shows that the plaintiff discussed Mr Rongzaib’s work injury case, including his application for legal aid, the circumstances of the accident, his sick leave and his bank accounts.  The plaintiff also told Mr Nasir to get his bankbook ready and “make sure it does not have too much money”.  He added that “[even] if there is $15,000 or $20,000, that’s not a problem.  If you have like $500,000 or $600,000, then it’s a problem”.

233.  Mr Nasir told the plaintiff that his cousin who worked at a construction site “wants to invent a case”, but the plaintiff queried why he should trust Mr Nasir and went on to say that “[if] I tell him today.  He might tell others that I told him …… The problem is that if I give advice and tomorrow he will say that I advised him.  …… I am afraid what advice are you seeking from me.  Tomorrow you will get my ass kicked ……”

234.  The Recordings Transcript for 30 December 2009 shows that whilst at the offices of the Legal Aid Department the plaintiff told the legal aid officer he can get a copy of the “ECC application” from the District Court in case one had already been filed for Mr Rongzaib by another solicitors’ firm.  When the legal aid officer commented that the plaintiff was very familiar with the procedure, he replied that “I am registered with the Law Society.  I am a Law clerk of the Law Society”.

235.  According to the Recordings Transcript for 30 December 2010, at the McDonald Restaurant the plaintiff arranged for Mr Rongzaib’s legal aid application to be filled in, and he spoke with a solicitor of KBC by telephone to arrange a meeting:

“[plaintiff]: …… Anthony, my boss. …… I just finished from legal aid now. Yes, new client, on Form 2, there is no problem on liability as far as I can see. And I just got the application. I thought if you were in the office, I could have brought it over. If no, then no problem. When we deal with the DLA problem and then later or I can ask them to come. …… I have two active applications going on, definitely there will be DLA on that. Definitely there will be certificate on PI and ECC. I am just working on them ……”

When Mr Rongzaib asked for the application form to completed on that day, the plaintiff said he had not yet taken any statement from Mr Rongzaib and he had to check with the court to see if any EC application had been previously issued by another solicitors’ firm, so the application would be submitted in a few weeks.  

236.  On 20 January 2010, Mr Rongzaib picked up a video recording device from Mr Hu and together with Mr Nasir met the plaintiff and Mr Ishtiaq at KBC’s offices concerning Mr Rongzaib’s legal aid application.  Mr Rongzaib stopped the recording upon entering the building.  The plaintiff instructed Mr Ishtiaq to fill out the legal aid application form for Mr Rongzaib, and then invited Mr Nasir to go out for cigarette.  Mr Rongzaib re-started the recording.  The plaintiff and Mr Nasir were watched by Mr B Wong who saw the plaintiff holding a cigarette in his right hand.  In Mr Nasir’s 2^nd witness statement (but not in his 2^nd statement), he said the plaintiff told him (a) “he had had an accident personally which he had “fixed” up/invented”, (b) “the employer was [JMP] and that he had fucked him”, and (c) “while on sick leave he was employed on a cash basis”.  Then, upon their return to KBC’s offices, the plaintiff requested Mr Ishtiaq to hand Mr Rongzaib’s legal aid application form to him and proceeded to use his right hand to draft something in the form relating to Mr Rongzaib’s work injury, ie how the work accident occurred.  Having done so for about a minute, the plaintiff asked Mr Ishtiaq to copy what he had drafted onto a new application form, which Mr Ishtiaq did as told.  The plaintiff continued to chat with Mr Nasir and Mr Rongzaib. Mr Rongzaib then switched off the recording.  Just before they left, the plaintiff destroyed the draft that he handed to Mr Ishtiaq for copying.  Mr Rongazaib then returned the device to Mr Hu who produced a record, and on the same day a representative from the defendant collected a copy thereof.

237.  According to the transcript of the recording for 20 January 2010, the plaintiff and Mr Ishtiaq talked with Mr Rongzaib about the time required by the Legal Aid Department to process his application.  The plaintiff had a conversation with Mr Rongzaib as follows:

“[plaintiff]: …… Alright, Ishtiaq (indistinguishable) …… it’s not finished yet.

[plaintiff]: Mr Ishtiaq, this is very important. I’m drafting here something, you make sure you copy there. (English)

[plaintiff]: What were you doing at that time, when (indistinguishable) … at the wall, just tell me that much? You leave it.

[Mr Rongzaib]: Wait, wait, wait, at wall what?

[plaintiff]: Only at wall, when you climb, were you carrying anything?

[Mr Rongzaib]: It was not only one wall.

[plaintiff]: Ok.

[Mr Rongzaib]: It was like a room, in basement. It’s built and designed like rooms. On top of it, we have to walk while carrying bamboos, from one corner to another side we were moving. I was going … there were some iron bars in small pieces placed on wall and I have to walk on these pieces. When I picked up, for example from here I picked up and while I was going to turn, the iron rods slipped, when iron slipped that bamboo was quite long and thick.

[plaintiff]: How much space was it?

[Mr Rongzaib]: Make it half feet that wall …

[plaintiff]: (Note: speaking as he writes) I was, I was … I was working in the basement, I was asked to walk on the wall … (indistinguishable) with dividid bars. (English)

[plaintiff]: Those iron rods are called dividid bars. The one that … (indistinguishable) which comes out from the middle.

[plaintiff]: We have to remind you for future, alright … coming out. I was working in the basement, ok, that’s it, first write this. I was asked to walk on the wall … (indistinguishable) with the divided, d-i-v-i-d-i-d, dividid bar, in the bracket, reinforcement, r-e-i-n-f-o-r-c-e-m-e-n-t close the bracket, that means out … (indistinguishable) … while walking I lost balance and fell on the … and fell off the wall resulting in injury … (indistinguishable). And copy this same thing on the next place. (English)

[plaintiff]: There will be another place, I will tell you later.

[Mr Rongzaib]; And secondly also put down that there was no safety.

[plaintiff]: Yes, don’t worry.

[Mr Rongzaib]: Yes, there was nothing.”

(b)  Impugned JMP 1^st and 2^nd Statements

238.  In the JMP 1^st Statement, JMP claims that the recordings were of conversations in Punjabi amongst the plaintiff, Mr Ishtiag (a friend of the plaintiff) and 2 undercover agents Mr Rongzaib and Mr Nasir at KBC’s offices on inter alia 20 January 2010.  JMP explains that he arranged for the recorded conversations to be transcribed, and he had disclosed the transcript in the PI Action and passed them to the police and to the Law Society for investigation.

239.  In the JMP 2^nd Statement, JMP claims that the recordings which had been given to the police clearly showed that the plaintiff met prospective clients at McDonalds, the offices of the Legal Aid Department, KBC’s offices, the offices of Messrs Jal N Kharbari & Co and other locations.  JMP claims that the first two meetings were clearly introductory and designed to gain trust, but the subsequent four recordings of meetings showed a breadth of dishonesty and wrongdoing that was most disturbing, eg the plaintiff stated he had been involved in creating fictitious injuries in the past, he advised Mr Nasir upon creating a bogus injury, he advised how to obtain bogus sick leave certificates and to extend sick leave necessary for a worthwhile claim, he disclosed how to invent/control a bogus witness, he admitted to improperly receiving HK$250,000.00 from a man named Shabbir whilst leaving the door open to receiving future payments at a client’s discretion.  The plaintiff further advised potential legal aid applicants to reduce their bank accounts to facilitate eligibility, and additionally he falsely claimed to be an authorised Law Society clerk

(c)  Affirmation evidence

240.  Both Mr KN Cheung and Mr T Wong in their affirmations agree that the defendant has never been charged in relation to any of the above matters.

241.  The Cheung 1^st Affirmation states that the transcript of the recordings does not support JMP’s allegations in the JMP 1^st and 2^nd Statements, but these matters are in any event completely irrelevant to the PI Action.  Such undercover evidence may, at best, be peripherally relevant to the issue of quantum, ie whether the plaintiff can use his right hand to write.  For example, Mr Nasir claims he witnessed the plaintiff fill in a legal aid application with his right hand on 8 December 2009, but “[this] was not recorded but is only barely alleged in his Witness Statement”.  Further, the Recordings in respect of the meetings on 21, 28 and 30 December 2009 and the corresponding Recordings Transcript, statements and witness statements do not show or document the plaintiff using his right hand to write at all.

242.  The Wong 1^st Affirmation explains that without consulting their solicitors the defendant arranged for undercover surveillance of the plaintiff and later provided to their solicitors the surveillance material.  The Wong 2^nd Affirmation explains it is the defendant’s case that the plaintiff exaggerated his injuries and that he was in fact capable of performing most of his pre-Accident duties.  Mr T Wong says the plaintiff’s claim that he was only able to earn HK$3,000.00 per month working for KBC must be a gross exaggeration since the surveillance evidence shows he was performing more duties than those of an interpreter.

(d)  Evidence as to credit

243.  Mr Wong submits it is the defendant’s case that the plaintiff has grossly exaggerated the effect of his injuries, and the impugned statements, witness statements and evidence may be relevant to the general credibility of the plaintiff.  On the other hand, Mr Shum submits that the incidents covered in the Recordings being wholly irrelevant to the PI Action were introduced solely for the purpose of attacking (falsely according to the plaintiff) the character of the plaintiff rather than proving any of the issues on liability and quantum, especially when the defendant does not or is unable to claim that the plaintiff fabricated the Accident or made a bogus claim in the PI Action.  Mr Shum therefore argues that such allegations are therefore not only irrelevant but also scandalous, oppressive and/or unfairly prejudicial.

244.  As regards the general rules of evidence for adducing evidence as to credit, I refer to the discussions in paragraphs 173-180 above.  There can be no doubt that the statements, witness statements and evidence in respect of the undercover operations carried out on 21, 28 and 30 December 2009 are wholly unrelated to the Accident.  If the defendant intends to adduce the impugned statements, witness statements and evidence on other “conduct” (which are unconnected with testimony in relation to the Accident) at the PI Trial as character evidence that goes to credit in order to impeach the general veracity of the plaintiff as witness, it is in my view impermissible for them to do so.  For the reasons set out in paragraphs 179 and 181-182 above and applied mutatis mutandis, I am not inclined to allow the impugned parts of such statements, witness statements and evidence to be adduced on this ground.

(e)  Direct relevance of the evidence: counsel’s submissions

245.  The court in the PI Action has to determine inter alia (a) what work the plaintiff was/is able to perform post-Accident, (b) what work he was actually doing after the Accident and (c) what his income should have been but for the Accident.  Mr Wong submits that the impugned statements, witness statements and evidence are relevant to and necessary for the adjudication of the contested issues, and hence they should not be struck out for being scandalous.

246.  Mr Shum submits that the only issues raised in the impugned statements, witness statements and evidence that may be peripherally relevant to the question of damages are as follows:

(a)  Mr Nasir allegedly witnessed the plaintiff fill in a legal aid application with his injured right hand on 8 December 2009 (but this was only documented in Mr Nasir’s 1^st statement and 1^st witness statement and not recorded) (see paragraph 220 above);

(b)  Mr Rongzaib and Mr Nasir allegedly witnessed the plaintiff fill in a legal aid application form with his injured right hand on 20 January 2010 (which meeting was recorded and documented in the 2^nd statement and 2^nd witness statement of each of Mr Nasir, Mr Hu, Mr Rongzaib and the witness statement of Mr B Wong) (see paragraphs 236-237 above).

The plaintiff does not seek to strike out parts of the statements, witness statements and evidence concerning (a)-(b) above.  But the Recordings in respect of the meetings on 21, 28 and 30 December 2009 and the corresponding Recordings Transcript, statements and witness statements do not show or document the plaintiff using his right hand for writing or other purpose.  Mr Shum argues that they are liable to be struck out.

247.  Mr Wong submits that in the Answer to Interrogatories without Order (see paragraph 30 above) the plaintiff claims that since November 2008 he did not have any other income apart from his monthly income of HK$3,000.00 from his employment with KBC.  But the Recordings Transcript show that the plaintiff claims (a) to have had income of HK$60,000.00 (21 December 2009), (b) to work for two companies (28 December 2009), (c) to perform duties in excess of those of an interpreter (28 December 2009), and (d) to have drafted documents (20 January 2010).  Mr Wong therefore submits that contrary to what has been suggested in the Answer to Interrogatories without Order (see paragraph 30 above) the plaintiff should be earning more than his alleged sole income of HK$3,000.00 per month from KBC.  Mr Wong argues that the full picture of the plaintiff’s ability to use his right hand cannot be elucidated without the impugned statements, witness statements and evidence which demonstrate that the plaintiff said one thing and did another.  Such impugned materials are necessary and relevant for determining the dispute as to the plaintiff’s post-Accident loss of earnings, and so should not be struck out for being scandalous.

248.  Mr Shum does not consider the matters raised in (a)-(d) in the above paragraph helpful:

(a)  In respect of the plaintiff’s assertion in the Recordings Transcript for the meeting on 21 December 2009 that his salary was HK$60,000.00 (see paragraph 225 above), the adoption of past tense suggests that the plaintiff previously earned HK$60,000.00, which cannot be probative of the disputed issue as to what he can now earn.

(b)  In respect of the Recordings Transcript for the meeting on 28 December 2009, the plaintiff’s assertion that he worked for two companies (see paragraph 227 above) should not be read out of context.  Mr Shum argues that the defendant should not build a case merely on the basis of this single conversation, but rather they should seek to adduce concrete evidence (if they can) that the plaintiff served two employers after the Accident.

(c)  Contrary to JMP’s suggestion that the Recordings made on 28 December 2009 demonstrate how the plaintiff was able to perform duties beyond those of an interpreter, Mr Shum submits that the work the plaintiff did was in fact interpreter’s work, eg seeing potential Pakistani client, accompanying such person to the offices of the Legal Aid Department and offering interpretation service, giving case to solicitors’ firm, and attending meeting with such person and the plaintiff’s solicitor boss and offering interpretation service.  Further, the defendant is not precluded from cross-examining the plaintiff about his post-Accident work duties and why he would work for KBC for HK$3,000.00 per month.

(d)  As regards the observation that plaintiff drafted a document on 20 January 2010 (see paragraphs 236-237 above), Mr Shum asks rhetorically whether this is not part of the work of an interpreter.

249.  Mr Shum says that these are just a few small points drawn from the Recordings Transcript, which have been provided to the police, but no charges have been laid against the plaintiff to date.  If the impugned statements, witness statements and evidence are allowed, they will unduly lengthen the PI Trial by having to go into the details of these meetings, especially if it will be as bitterly fought between the parties as in the EC Trial.

250.  Mr Shum argues that the impugned parts of the JMP 1^st and 2^nd Statements clearly suggest the defendant’s motive in adducing the impugned materials is to show that the plaintiff is a dishonest person, eg tempting potential clients to do something improper, creating bogus injuries and/or bogus sick leave, but such impugned materials (dealing with meetings that happened long after the Accident) do not concern improvements to the plaintiff’s injured right hand.

251.  Mr Shum argues that the inclusion of such irrelevant and unsubstantiated evidence will lead to and result in mini-trial on irrelevant incidents/matters, which will prejudice a fair trial and will unduly and disproportionately lengthen such trial.  As such, they are scandalous and oppressive.  The Wong 1^st Affirmation admits that the allegations were made mainly to discredit the plaintiff with regard to his loss of income, but a trial of character is beyond the scope of analysis by a court of law.

(f)  Direct relevance of the evidence: discussion

252.  As regards the legal principles on admissibility of evidence as to other conduct, I repeat the discussion in paragraphs 196-204 above.

253.  For the purpose of the first-stage test of simple relevance (ie whether the evidence of such other conduct is logically probative or disprobative of some issue or matter which requires proof), I agree with Mr Wong that the relevant disputed issues are the plaintiff’s post-Accident employment with any and all employer(s), the nature and scope of his post-Accident work, his actual post-Accident work duties and income, any other work duties that he can potentially manage, and any potential income he is capable of earning.  Are the impugned statements, witness statements and evidence relevant to these disputed issues?

254.  Quite fairly, the plaintiff has not applied to strike out parts of the statements, witness statements, recordings and transcript of the recordings that deal with the meetings on 8 December 2009 and 20 January 2010 (see paragraphs 219-220 and 236-237 above) since such evidence is arguably relevant to the plaintiff’s ability to write with his right hand and hence to the aforesaid disputed issues.

255.  However, at this interlocutory stage of the PI Action, one cannot just focus on whether the plaintiff is able to use his right hand to write, type etc. In my view, the aforesaid disputed issues require a wider consideration.  Even if one puts aside JMP’s suggestions in the JMP 2^nd Statement that the Recordings and the Recordings Transcript show dishonesty and wrongdoing on the part of the plaintiff, the impugned materials arguably suggest that the plaintiff was doing more than translating conversations between potential Pakistani client(s) and non-Punjabi speaking persons (eg solicitor, law clerk and/or legal aid officer).  The plaintiff met with such potential client(s) on his own, arranged for legal aid application form(s) to be completed and later submitted to the Legal Aid Department, and spoke to such potential client(s) about sick leave, eyewitness and/or bank account in anticipation of claim(s) for injury on duty.  The Recordings and the Recordings Transcript also show that the plaintiff mentioned about his salary (see paragraph 225 above), monies he received from Shabbir whose case he handled (see paragraph 224 above), and his employment (see paragraph 227 above).

256.  I find the above matters to be logically probative in respect of the disputed issues identified in paragraph 253 above, and they cannot be brushed aside by Mr Shum’s submissions in paragraphs 248-249 above.  Whether the work the plaintiff did as shown in the Recordings and the Recordings Transcript comes within or without the usual scope of duties of an interpreter is a matter for the trial judge at the PI Trial, but the impugned evidence goes further to the issue as to what work the plaintiff is actually able and/or is capable of handling.  I am also not persuaded that the alleged brevity of his references to his salary, the payment he received for case-handling and/or his working for two companies necessarily suggest that such evidence should be excluded.  At best, it may affect the weight of such evidence, which matters are ultimately for the trial judge in the PI Trial.

257.  As to the second-stage test of discretionary exclusion, it is true that JMP has alluded to his belief that the impugned statements and witness statements by Mr Nasir, Mr Hu, Mr Mustafa, Mr Rongzaib and Mr B Wong as well as the Recordings and Recordings Transcript reveal dishonesty and misconduct on the part of the plaintiff. But if they relate to relevant matters, I do not see how JMP’s belief (which the trial judge may or may not accept) justifies debarring admission of relevant and probative evidence.  As explained in paragraph 51 above, no matter how grave the allegation, so long as it is material to the issues in dispute between the parties, the imputation against the opponent will not be regarded as scandalous or so plain and obvious that it should be struck out.

258.  Mr Shum calls upon the defendant to adduce “concrete evidence” (if they can) on their contentions that the plaintiff can do more, earn more and perform better with his right hand.  But since the plaintiff has left the defendant’s employ, the defendant is unlikely to be able to adduce direct evidence from JMP or their staff on these matters.  Evidence obtained from surveillance and/or undercover operations if relevant and material to the aforesaid disputed issues is not inadmissible.

259.  Furthermore, the events covered by the impugned statements, witness statements, Recordings and Recordings Transcript took place on 3 days in December 2009.  It cannot be said that such materials are so extensive and far-ranging that they will disproportionately and unduly lengthen the PI Trial. It is true that there will be a number of witnesses, but the subject matter of their evidence overlap and fall within a limited compass.  Rather than distracting the parties and the court from the real issues as Mr Shum suggests, I am persuaded that the impugned matters go to the very disputed issues on quantum, ie the plaintiff’s claim for loss of earnings and loss of earning capacity.

260.  Having considered all the circumstances, I am not persuaded that the admission of the impugned matters will distort the PI Trial, distract attention from the real issues or cause prejudice to the plaintiff even though he may have to respond to such matters.  On the contrary, at this interlocutory stage of the PI Action, I find the impugned matters to be relevant and necessary for fair and just determination of the contested issues.  But as the PI Action develops and progresses towards the PI Trial, circumstances may change, so the above conclusion will not fetter the hands of the trial judge who has overall management of the admissibility of evidence for the purpose of trial.

XXIII.  INADMISSIBILITY APPLICATION: FORM 2 IN RESPECT OF THE WIFE’S ACCIDENT/INJURY

261.  Under the Inadmissibility Application, the plaintiff applies to strike out paragraph 10 of the JMP 2^nd Statement (item 4 of Table A) in which JMP states that the plaintiff and the Wife were on police bail in respect of various offences of forgery and/or perjury surrounding a Form 2 produced in evidence at ECC 1789/2006 (as handled by CIP Simon Kwan at Chai Wan Police Station under the police reference of CW RN 0802 9102) (“Form 2”).  He further suggests that police forensic and other evidence show that despite the plaintiff’s denial on oath “at ECC trial” he did in fact write out the Form 2 and presented it to the insurers MSIG Insurance (Hong Kong) Limited (“MSIG”) as genuine.

(a)  Affirmation evidence

262.  In the Cheung 1^st Affirmation, Mr KN Cheung notes that the Form 2 concerned an accident suffered by the Wife during the course of her employment with her previous employer TFL.  The defendant claims that the plaintiff in fact wrote out the Form 2 himself and presented it to the insurers MSIG as genuine.

263.  The Wong 1^st Affirmation reminds that in the RSOD the plaintiff avers that he worked for TFL (a hair salon) between November 2007 and July 2008.  In fact, the Wife also worked for TFL as a receptionist, and by coincidence the EC insurer for both the defendant and TFL was MSIG.  MSIG instructed that on/about 31 March 2008 the plaintiff and the Wife appeared at their offices to produce the Form 2 in respect of an alleged accident suffered by the Wife on 20 February 2008 whilst working for TFL, and to request EC payment for temporary incapacity.  Eventually HK$5,000.00 was obtained.  But upon enquiries with TFL, MSIG was informed that TFL (a) did not fill in, sign or file the Form 2, (b) disputed the genuineness of the accident to the Wife, and (c) reported the matter to the police.  Both the plaintiff and the Wife were charged with offences for using a copy of a false instrument and appeared at court on/about 31 May 2011.

264.  According to the Cheung 3^rd Affirmation, the plaintiff was charged with an offence of “using a copy of false instrument” (ie the Form 2) on 31 March 2008 under ESCC 2285/2011 while the Wife was charged with two offences of “using a false instrument” in relation to a bank withdrawal slip and of “using a copy of false instrument” (ie the Form 2) in the same criminal proceedings.  The trial was concluded on 29 November 2011 when the plaintiff and the Wife were acquitted of all charges after the court ruled there was no case to answer.

(b)  EC Action and EC Judgment

265.  The EC Judgment also dealt with the matter of the Form 2.  At the EC Trial, defence counsel argued that the plaintiff was evasive on the submission of the Form 2, and the nature of the injuries suffered by the Wife had striking similarities with those suffered by the plaintiff in the PI Action.  It was in the course of cross-examination of the Wife that Mr Wong as defence counsel in the EC Trial sought leave to adduce the Form 2, which application was opposed by Mr Shum as the plaintiff’s counsel in the EC Trial (see pages 245-251 of the transcript of the EC Trial). Mr Wong wanted to call witness to produce the Form 2, but eventually the Form 2 was admitted in evidence by agreement without calling any witness (see page 260 of the transcript of the EC Trial).   In the end, the EC Judge did not find the plaintiff to be evasive on the submission of the Form 2, and further held there was no suggestion of any element of fraud or impropriety relating to the Wife’s injuries covered by the Form 2, so he could not see how these matters would be relevant to the EC Action.

(c)  Defendant’s case

266.  Mr Wong further submits that the Form 2 may be relevant to the plaintiff’s general credibility.  According to the Chiang 1^st Report dated 8 October 2007 (for which he examined the plaintiff on 20 July 2007), Dr Chiang observed discrepancies in the clinical symptoms and requested for further medical records.  When these were obtained, he completed the Chiang 2^nd Report on 4 May 2008 stating that the plaintiff should be able work in his pre-Accident job with inconvenience or reduction in efficiency.  But the RSOD avers that the plaintiff’s total income from his employment by TFL as general manager handling employees’ dispute matters during the period from November 2007 to July 2008 (ie when the Form 2 was presented to MSIG) was HK$5,000.00.  On such premise, Mr Wong argues as follows:

(a)  “If the [plaintiff] would risk a criminal charge to obtain a sum of only $5,000 from MSIG, this can reflect on his financial position around that time”.

(b)  “It is submitted that the above is able to establish that the [plaintiff], though able to do his original job, was not able to obtain employment with sufficient income.  This is relevant to the [defendant’s] arguments …… that the plaintiff was unemployable because of his reputation and the alleged embezzlement of client’s money and not because of his injuries.”

Mr Wong submits that in deciding whether evidence can be struck out for being scandalous, the court has to consider its relevancy and necessity to any issue in the action, and here the impugned evidence is relevant to and necessary for decision on the contested issues in the PI Action.

(d)  Plaintiff’s case

267.  Mr Shum submits that the Form 2, which relates to an accident suffered by the Wife during the course of her employment with her previous employer TFL, was put in evidence at the EC Trial even though it was wholly unrelated to the Accident and had no tendency to prove any of the issues in dispute.  Given the findings by the EC Judge in the EC Judgment (see paragraph 265 above) and the acquittal of the plaintiff and the Wife (see paragraph 264 above), any other allegations of dishonesty are nothing more than mere assertions.

268.  Mr Shum says that even the Wong 1^st Affirmation acknowledges the allegations were mainly for discrediting the plaintiff with regard to his claim for loss of income, but such effort to abuse/prejudice the plaintiff and his witness(es) will distract from the real issues at the PI Trial.  It is not permissible for the defendant to adduce character evidence on credit only, and the inclusion of such irrelevant and unsubstantiated evidence will lead to and result in mini-trial on irrelevant incidents/matters that will unduly and disproportionately lengthen the PI Trial and it will also prejudice a fair trial.  Mr Shum says such impugned evidence should be struck out as being scandalous and oppressive.

(e)  Discussion

269.  As regards the general rules of evidence for adducing evidence as to credit, I refer to the discussion in paragraphs 173-180 above.  There can be no doubt that the Form 2 is wholly unrelated to the Accident and to the plaintiff in the sense that it does not concern any accident/injury he suffered.  It concerns the Wife’s accident at work.  The other misconduct which the defendant relies (ie the Form 2 was allegedly filled in not by TFL but by the plaintiff and presented by the plaintiff and the Wife to MSIG) is plainly character evidence that goes to credit in the PI Action.  In my view, it is impermissible for the defendant to adduce such evidence of other misconduct for the purpose of impeaching the general veracity of the plaintiff as witness.  For the reasons set out in paragraphs 179 and 181-182 above and applied mutatis mutandis, I am not inclined to allow paragraph 10 of the JMP 2^nd Statement to be adduced on this ground.

270.  As regards the legal principles on the admissibility of evidence as to other misconduct, I repeat what has been discussed in paragraphs 196-204 above. For the first-stage test of simple relevance (ie whether the evidence of other conduct is logically probative or disprobative of some issue or matter which requires proof), I find the defendant has failed dismally on such limb.  Since, as I have found that, the defendant is estopped from disputing the genuineness of the Accident and of the right thigh and right wrist injuries suffered as a result of the Accident, JMP’s allegations in relation to the Form 2 are irrelevant to the issue of liability in the PI Action.

271.  On the issue of quantum in the PI Action, Mr Wong’s submissions in paragraph 266 above is speculative and unsubstantiated.  The plaintiff had no case to answer and was acquitted of the criminal charges in relation to the Form 2.  There is no primary evidence placed before me from MSIG or TFL in relation to the Form 2.  Quite simply, there is no cogent or reliable basis to support Mr Wong’s submissions that the plaintiff would risk a criminal charge to obtain a sum of only HK$5,000.00 from MSIG, and there is no arguable support for his inferential suggestion that this reflects the plaintiff’s financial position around that time.  But even if there is cogent evidence of criminality (which I disagree given the bare assertion by JMP in the JMP 1^st Statement), I see no logic in the aforesaid inferential suggestion.  It does not follow that because one commits a crime one is therefore poor or vice versa that because one is poor and hence greedy one will commit a crime.  More importantly, I do not begin to see how the Form 2 and the related criminal trial have any bearing on the issue of whether the plaintiff is capable of returning to his pre-Accident job.  To connect the two requires a wild leap of faith. More importantly, as Mr Shum points out, there is no logical basis for suggesting that the Form 2 created in 2008 has any relevance to any decision that the defendant might have made to dismiss the plaintiff in April 2006 (as pleaded in the RSOD) or in March 2006 (as alleged in the JMP 1^st Statement).  In any event, there is no plea in the RSOD that the Form 2 and/or the plaintiff’s alleged misbehaviour in relation thereto were matters that would have led the defendant to dismiss the plaintiff in March/April 2006.  In my view, paragraph 10 of the JMP 2^nd Statement (item 4 of Table A) ought to be struck out.

XXIV.  ISSUE ESTOPPEL AND INADMISSIBILITY APPILICATIONS: PLAINTIFF’S PREVIOUS CLAIMS

272.  Under the Issue Estoppel Application, the plaintiff applies to strike out a table listing the previous claim records in relation to previous accidents suffered by the plaintiff from 3 October 1997 to 3 October 2002 (item 21 of Table B).  Under the Inadmissibility Application, the plaintiff applies to strike out paragraph 21(iii) of the JMP 1^st Statement (item 2 of Table A), in which JMP claims that the plaintiff acknowledged he had four work-related accident claims against at least four separate employers since arriving in Hong Kong from Pakistan in August 1996 up until 3 October 2002. JMP says that none of these claims were voluntarily revealed by the plaintiff, and he only did so upon being confronted with a late discovery request/application in the EC Action.  JMP notes that all these claims were settled without recourse to court action.

273.  Mr Wong submits that such impugned evidence may be relevant to the general credibility of the plaintiff, so it should not be struck out for being scandalous.  But given the general rules of evidence for adducing evidence as to credit (see paragraphs 173-181 above), I have no doubt that such previous EC claims (being settled claims for other injuries on duty in the course of employment with other employers) are wholly unrelated to the Accident.  I am not able to identify (and Mr Wong has not alluded to) any misconduct or other adverse inference that can be drawn from such evidence.  As Mr Shum submits, there is no suggestion that these previous EC claims were bogus.  They do not even begin to support the defendant’s allegations that the plaintiff has exaggerated his present claim.  I am not even persuaded that this is character evidence that goes to credit.  It is simply irrelevant.

274.  Further, I have found that defendant is estopped from disputing the occurrence of the Accident and the right thigh and right wrist injuries the plaintiff suffered as a result of the Accident.  In fact, the matter of the plaintiff’s previous claims has been canvassed and determined in the EC Action. In the EC Judgment, the EC Judge said as follows:

“3(7) The Defence Counsel submits that the [Accident] is already the 5^th or the 6^th alleged accident of the [plaintiff], and he did not frankly reveal all previous incidents until at a quite late stage of the proceedings. There is no proof that in any of these previous accidents the [plaintiff] committed any wrongful or improper act. I cannot see how the revelation of the previous incidents could be helpful in resolving the issues in this case.”

I agree with such views for I cannot see how the previous incidents let alone their early or late revelation can help to resolve the issues in the PI Action.  Although it is stated in the previous claims record that the “injury part” for the accidents on 3 October 1997, 4 January 2001, 7 March 2002 and 3 October 2002 were respectively “NA”, “upper limb”, “upper limb” and “back”, there is complete paucity of information as to who prepared such record, the nature of the injury and the state of the plaintiff’s recovery. Further, the “case result” for the four accidents were “NA” for the first two and “case put aside” for the latter two. In my view, the previous claims record has no probative value to the PI Action for it gives no clue at all as to what happened to the plaintiff’s upper limb and back. I also agree with Mr Shum that the inclusion of such irrelevant evidence will lead to and result in mini-trial on irrelevant incidents/matters that will disproportionately and unduly lengthen the PI Trial.  These matters are liable to be struck out under the Issue Estoppel and Inadmissibility Applications.

XXV.  CONCLUSION

275.  In the circumstances, I grant an order that the pleadings, statements, documents and evidence specified in the Schedule annexed to this Decision be struck out and/or expunged and excluded.

276.  Within 14 days from today, ie on or before 21 May 2012, the plaintiff shall file and serve the following documents that give effect to the above order by deleting all parts that have been struck out:

(a)  Amended Answer;

(b)  Amended JMP 1^st Statement with annexures;

(c)  Amended JMP 2^nd Statement with annexures.

277.  I grant leave to the plaintiff to amend the MA 1^st Statement in the manner marked in red as per the draft annexed to the Re-Amended Summons.  I further order the plaintiff to file and serve the Amended MA 1^st Statement within 14 days from today, ie on or before 21 May 2012.

278.  In respect of the MA 2^nd Statement I also grant leave to the plaintiff to amend the MA 2^nd Statement by deleting paragraph 4 and the 1^st sentence in paragraph 5 thereof (“Deleted Part”), but the plaintiff shall have liberty to choose whether to retain the remaining 2^nd to 5^th sentences in paragraph 5 and the whole of paragraph 6 thereof (“Remaining Part”).  I further order the plaintiff to file and serve the Amended MA 2^nd Statement within 14 days from today, ie on or before 21 May 2012.

279.  If the Amended MA 2^nd Statement to be filed and served within the prescribed time removes the Deleted Part only but retains the Remaining Part, the plaintiff is at liberty to take out inter partes application for adducing witness or documentary evidence in rebuttal within 14 days thereafter, ie on or before 4 June 2012.  For the avoidance of doubt, no leave is granted for the plaintiff to take out such application if the Amended MA 2^nd Statement to be filed and served within the prescribed time removes both the Deleted Part and the Remaining Part.

280.  As regards costs, the plaintiff has substantially succeeded on the Issue Estoppel Application and partially succeeded on the Inadmissibility Application.  The Consequential Application essentially follows the outcome of the Issue Estoppel and Inadmissibility Applications.  On the principle of costs following event, the plaintiff is entitled to two-thirds and the defendant is entitled to one-third of the costs of and occasioned by the Re-Amended Summons.  By offsetting the respective costs, I grant a costs order nisi that the defendant do pay the plaintiff one-third of the costs of and occasioned by the Re-Amended Summons (including all costs reserved, if any) in any event to be taxed if not agreed with certificate for counsel, and there be legal aid taxation in respect of the plaintiff’s own costs.  Since the plaintiff is legally aided, summary assessment of costs is inappropriate under Order 62 rule 9C(1)(b) of the RHC unless the plaintiff’s solicitors waive the right to any further sum of money.

XXVI.  POSTSCRIPT

281.  In light of the provisions in the Legal Practitioners Ordinance Cap 159 and rule 4 of the SPR and given (a) the finding of fact by the EC Judge in the EC Judgment that the payment of the sum of HK$150,000.00 by the defendant to the plaintiff around Chinese New Year in 2006 was in the nature of commission (see paragraph 110 above), (b) my conclusion that the defendant is estopped from disputing such finding/decision in the PI Action (see Part XVII(a) above), and (c) the defendant’s acknowledgment that it is unlawful to pay any commission to the plaintiff as an unqualified person (see paragraphs 34, 109(b) and 132 above), an issue therefore arises as to whether the defendant and/or JMP could be guilty of professional misconduct, which calls for consideration by the Law Society.  I therefore direct that the matter be referred to the Law Society.

Table A

Pleadings
No	Description		Part			Hearing Bundle
1	Answer		Paras.7-10			A26-4 – 26-5
Witness statements
No	Description		Part			Hearing Bundle
2	JMP 1st Statement		4th sentence of para.2, paras.4 and 21, 7th-9th sentences of para.22			B15, 19-21
3	JMP 1st Statement		Annexure B			B32-53
4	JMP 2nd Statement		Paras.4-6 and 9-10			B60-64, 66-67
5	JMP 2nd Statement		Annexures A-D			B69-103
Evidence
No	Description				LOD/ SLOD*	Hearing Bundle
6	All documents relating to KTCC713/2007				14-24	C1-112
7	Surveillance video recordings of 21, 28 and 30 December 2009				28	D42-46
8	Transcript of the recordings in item 7 above				27	D47-115
9	Affirmation of Neena Pushkarna dated 15/10/10 with exhibits thereto being the recordings and the transcriptthereof in items 7-8 above					D39-115
Documents  / Witness statements
No	Document		Witness statements		LOD/ SLOD*	Hearing Bundle
10	Paras.5-28 of Mr Nasir’s statement dated 15/1/10		Paras.6-28 of Mr Nasir’s 1st statement dated 13/9/10		29, 58	D1-1 – 1-4, D2-4
11	Paras.2-3 of Mr Nasir’s statement dated 3/2/10		Para.3-4 of Mr Nasir’s 2nd statement dated 17/9/10		33, 64	D1-13 – 1-14, D17-18
12	Mr Hu’s statement dated 15/1/10		Mr Hu’s 1st statement dated 14/9/10		30, 60	D22-1 – 22-3, D23-26
13	Para.3 of Mr Hu’s statement dated 3/2/10		Para.4 of Mr Hu’s 2nd statement dated 14/9/10		34, 61	D22-4, D27
14	Mr Mustafa’s statement dated 15/1/10		Mr Mustafa’s statement dated 13/9/10		31, 59	D19-1 – 19-2, D20-22
15	Mr Rongzaib’s statement dated 18/1/10		Mr Rongzaib’s 1st statement dated 14/9/10		32, 62	D28-1 – 28-2, D29-31
16	Paras.2-3 of Mr Rongzaib’s statement dated 3/2/10		Paras.3-4 of Mr Rongzaib’s 2nd statement dated 14/9/10		35, 63	D28-3, D32-33
17			Paras.4-5 and 7 of Mr B Wong’s statement dated 17/9/10		65	D35-36

Table B

Pleadings
No	Description	Part		Hearing Bundle
18	Answer	Paras.2-3 on p.2, para.4-6 on pp.3-4, para.11		A26-2 – 26-5
Witness statements
No	Description	Part		Hearing Bundle
19	JMP 1st Statement	4th sentence of para.2, paras.3, 6-7 and 13-20, 1st sentence of para.22		B15-19, 22
20	JMP 2nd Statement	Paras.3 and 7		B60, 65
Documents
No	Document	LOD/SLOD*		Hearing Bundle
21	Copies of the plaintiff’s previous claim records in respect of accidents for the period from 3/10/97 to 3/10/02	12		C133

Table C

Witness statements
No	Description	Part	Hearing Bundle
22	Plf 1st Statement	Paras.10, 12-14	A59-10 – 59-17
23	Plf 2nd Statement	Paras.4-6	A59-18 – 59-22

*    LOD = defendant’s List of Documents filed on 19 July 2010

      SLOD = defendant’s Supplemental List of Documents filed on 14 October 2010

Schedule

1.   paragraph 2 on page 2 of the Answer;

2.   the word “while” and the phrase “Dr Lau did raise doubt about the injuries to his right wrist, as more detailedly set out in his report” in paragraph 3 on page 2 of the Answer;

3.   2^nd sentence in paragraph 4 on page 3 of the Answer (ie “He was at the time of the accident earning a fixed basic salary of $20,000.00.”);

4.   the phrases “(which included the Plaintiff)” and “(a) the Plaintiff – HK$150,000;” in paragraph 5 on page 3 of the Answer;

5.   2^nd sentence in paragraph 6 on page 4 of the Answer (ie “It is not admitted that such bonus form part of the Plaintiff’s regular income.”);

6.   paragraph 11 of the Answer;

7.   4^th sentence in paragraph 2 of the JMP 1^st Statement (ie “However, it must be stressed that he was not required to type, file or prepare documentation.”);

8.   the word “Although” and the phrase “, he was not required to type or use office systems” in paragraph 3 of the JMP 1^st Statement;

9.   the word “alleged” in paragraph 6 of the JMP 1^st Statement;

10.    the 4^th sentence in paragraph 7 of the JMP 1^st Statement (ie “This was surprising as these were the hospitals closet to our office.”);

11.    the last sentence in paragraph 14 of the JMP 1^st Statement (ie “(The writing of brief instructions was not a particularly essential part of his job duties.)”;

12.    paragraph 15 of the JMP 1^st Statement;

13.    1^st sentence (ie “Regarding the Plaintiff’s remuneration at my firm, he was on a fixed salary of $20,000 since 1^st April 2005.”) and the phrase “(a) the Plaintiff - $150,000;” in paragraph 16 of the JMP 1^st Statement;

14.    paragraph 17 of the JMP 1^st Statement;

15.    last two sentences of paragraph 18 of the JMP 1^st Statement (ie “I did not agree to pay him and nor did I ever pay him any commission. The payment of $150,000 to him was only made in the circumstances described above and was not a commission as he has alleged.”);

16.    paragraph 19 of the JMP 1^st Statement;

17.    2^nd sentence of paragraph 20 of the JMP 1^st Statement (ie “I can confirm that even without that incident, if the Plaintiff had remained working in my firm, his salary would have remained at $20,000, subject to any fluctuation upwards or downwards due to market conditions and the firm’s business.”);

18.    preamble and sub-paragraphs (i)-(iii) in paragraph 21 of the JMP 1^st Statement except the 6^th sentence (ie “I would not have continued to employ him and thus would not have increased his wages.”);

19.    1^st sentence in paragraph 22 of the JMP 1^st Statement (ie “I was very concerned about the untrue allegations of commission made against me by the Plaintiff.”);

20.    Annexure B of the JMP 1^st Statement;

21.    part of the 3^rd sentence (ie “but most certainly did not type or prepare documents other than to occasionally make hand written notes for statement or other such like” and part of the 5^th sentence (ie “The other litigation staff prepared all the file documentation”) in paragraph 3 of the JMP 2^nd Statement;

22.    paragraphs 4-6 of the JMP 2^nd Statement;

23.    the 3^rd to 5^th sentences in paragraph 7 of the JMP 2^nd Statement (ie “I specifically remember that Dr Lam asked how the injury occurred and the Plaintiff replies ‘I don’t know’. Dr Lam’s medical notes show no note of how the injury occurred and it is clear from various medical notes that the Plaintiff graduates from glass to a cutter as he variously describes the cause of his injuries to other medical personnel at this time. I specifically remember this because it contrasts to the record of Dr Chau Choi-yiu on 11^th March 2007 which describes the injury as a stab injury (The Plaintiff requested that this not be disclosed to me).”;

24.    paragraph 10 of the JMP 2^nd Statement;

25.    Annexure A of the JMP 2^nd Statement;

26.    Annexure B of the JMP 2^nd Statement except (a) statement of Singh Jagraj dated 11 April 2006 and (b) statement by Singh Jagraj to the police dated 11 April 2006;

27.    Annexure C of the JMP 2^nd Statement except copy extracts of bank records and payment slips;

28.    Annexure D of the JMP 2^nd Statement;

29.    all documents relating to the Criminal Trial except (a) JMP’s statement to the police dated 13 April 2006 and (b) statement by Singh Jagraj to the police dated 11 April 2006;

30.    a table listing the previous claim records in relation to previous accidents suffered by the plaintiff from 3 October 1997 to 3 October 2002.