CHAN MING KIT v. LUK KWOK KEUNG

DCPI 1964/2022

[2025] HKDC 1047

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1964 OF 2022

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JUDGMENT

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1.  This case has been badly handled by the parties (and no less, their respective legal representatives) on multiple levels. I can only do justice to them by setting out all the problems, so that the court will hopefully see no more of that in future cases.

2.  On 15 February 2021 at 3:10 pm, the plaintiff was driving a private vehicle bearing the registration TW8898 (“TW8898”) along the left 1^st lane of Tam Kon Shan Interchange, which is essentially a roundabout. When TW8898 approached the exit to Tsing King Road, it collided with a private vehicle bearing the registration VB4521 (“VB4521”), which was driven by the defendant. I shall refer to this collision as “the Accident”.

3.  The plaintiff claims that the Accident was caused by the defendant’s negligent driving, and claims HK$272,818.89 as damages for his bodily injuries, and for the damage TW8898 sustained.

4.  Because of the Accident, the defendant was prosecuted for careless driving. He was convicted upon his own plea in WKS 4800/2021 on 7 September 2021. He was fined HK$1,000.00. Despite this conviction, the defendant says that he ought not be found liable at all; the plaintiff should be held wholly liable in causing the Accident instead. He launches a counterclaim for the cost of repair for VB4521, and travelling expenses for the period during which he cannot use his vehicle.

5.  The present case contains no special feature that separates it from the run-of-the-mill traffic cases that frequent the Running List. Surprisingly, the trial was set down in the Fixture List with 4 days reserved[1]. The length of the trial was revised down from the 8 days that parties estimated in aggregate in their certificates for time estimate, after the Master dealing with the setting down application raised requisitions on the reasonableness of their respective estimates. In fact, the parties finished examination of the 3 witnesses within the 1^st day of trial. The 2^nd and 3^rd days originally reserved were vacated as a result.

6.  And as I thought, after hearing the evidence, that the underlying dispute between the parties was indeed simple and straightforward, the defendant in his written closing[2] disclosed to this court that he put forward a sanctioned payment of HK$20,000.00 on 5 August 2022. Mr Charles K C Chan, counsel for the defendant, appeared to excuse this fault by the fact that, on the first day of trial, I directed parties to address me on costs in relation to 4 specific matters which I shall address below. At any rate, my directions cannot justify the defendant’s error in disclosing the amount of the sanctioned payment prior to judgment being handed down. After I gave time to Mr Chan, he conceded on the defendant’s behalf that the defendant would be liable to the plaintiff for at least HK$20,000.00. It was on that basis that I did not abort the trial and reserved my judgment.

THE ACCIDENT

7.  Tam Kon Shan Interchange is a conventional roundabout with 3 lanes.

8.  It is the plaintiff’s case that:-

8.1.  TW8898 entered the Interchange from the left 1^st lane entrance of Fung Shue Wo Road[3]. He stayed on the left 1^st lane of the Interchange. He maintained a speed of around 40 km/h.

8.2.  When he was approaching the exit to Tsing King Road, he intended to stay on the Interchange. But there was a vehicle (later known to be VB4251) came up from behind on the left 2^nd lane at 50-60 km/h.

8.3.  VB4521 then cut into the left 1^st lane in front of him. He could not stop TW8898 in time. The right front part of TW8898 collided with the left rear door of VB4521.

9.  The defendant says that:-

9.1.  When VB4521 entered the Interchange, it stayed on the left 3^rd lane (ie the innermost lane). It kept the speed of around 30 km/h. TW8898 was travelling side by side on the left 1^st lane.

9.2.  When VB4521 was about to leave the Interchange at the exit to Tsing King Road, TW8898 travelled on the left 1^st lane behind it. As the defendant puts it in §5 of his witness statement dated 28 March 2023, VB4521 “was almost in front of TW8898”.

9.3.  The defendant then put on the left indicator light to exit to Tsing King Road. VB4521 was then “almost ahead of TW8898”.

9.4.  TW8898 did not decelerate. Its right front mud flag collided with the left rear door of VB4521.

10.  The defendant was interviewed by the police under caution on 1 March 2021. He stated in his police witness statement that:-

10.1.  He entered the Interchange from Fung Shue Wo Road. When he was about to exit Tsing King Road, he was in the middle lane, ie left 2^nd lane.

10.2.  After both TW8898 and VB4521 went into the Interchange, VB4521 was ahead of TW8898 by half a vehicle length.

10.3.  He kept his indicator light on. He observed from the left side mirror that TW8898 was around a vehicle length behind him. But when he thought there would be sufficient space ahead of TW8898 to allow VB4521 to exit the Interchange at Tsing King Road, the Accident happened.

11.  The plaintiff provided 2 video footages to the police: 1 recorded by the front camera, and the other by the rear camera on TW8898. These footages are also made available as evidence in the present case, and cross examination respectively against the plaintiff and the defendant on these footages is led at trial. There is no dispute that these footages provide the best evidence to evaluate the parties’ respective cases.

12.  The front camera footage is 34 seconds long. It starts when TW8898 was still on the left 1^st lane of Fung Shue Wo Road. When TW8898 entered the Interchange, it stayed on the left 1^st lane. The footage manages to show the traffic of the left 1^st and 2^nd lanes. It is only by the last 2 seconds of the footage that one can see VB4521 appearing on the footage; by that time, the Accident was about to occur.

13.  The rear camera footage is also 34 seconds long. After some cross examination, the defendant accepts that the silver vehicle travelling on the left 3^rd lane of Fung Shue Wo Road, and staying on the left 3^rd lane of the Interchange initially was VB4521. The footage showed that TW8898 entered into the Interchange prior to VB4521. VB4521 can be observed from the footage from the 20^th second when it first entered the Interchange, to the 30^th second when it disappeared from the left. The collision between TW8898 and VB4521 can be inferred from the shaking of the footage at the 34^th second, just before the footage ended.

14.  I have no hesitation to find that the plaintiff is truthful and reliable when he recounts how the Accident happened; I find the defendant lying in his police witness statement and in his evidence in the present case. My reasons are as follows:-

14.1.  The footages are in complete contradiction of the defendant’s evidence with respect to the relative positions of TW8898 and VB4521 when they entered the Interchange, and when they were approaching the exit to Tsing King Road.

14.2.  The defendant must be wrong to say that, because of the front camera was facing directly ahead, VB4521 was not captured by the front camera until just before the Accident. If there were any truth in the defendant’s evidence, VB4521 should be observable much earlier in the front camera footage, and no longer observable much earlier in the rear camera footage. But until the moment just before VB4251 attempted to cut into the left 1^st lane from the left 2^nd lane, VB4521 was at no time seen ahead of TW8898 by half to a whole vehicle length.

14.3.  VB4521 must have a speed at least the same as, if not higher than, TW8898 after it entered the Interchange. Otherwise, its distance behind TW8898 could not have been reducing as the rear camera footage goes on. And for it to overtake TW8898, VB4521 must have picked up speed when it was approaching the exit to Tsing King Road.

15.  I find as facts that VB4251 came up from behind TW8898, first on the left 3^rd lane of the Interchange, then after having cut into the left 2^nd lane, it proceeded to cut in front of TW8898 by picking up speed. But there was insufficient time for the plaintiff to react, and thus the Accident happened. What the defendant says as to how the Accident happened may describe, at best, what actually happened for the split second before the collision between the 2 vehicles occurred. His evidence misrepresents the Accident to the court as if what he describes lasted for the whole, or a substantial period of time when the 2 vehicles were inside the Interchange.

16.  It is trite that, because of his criminal conviction, it is up to the defendant to put forward evidence to show that he was not negligent in the Accident.

17.  Since I have rejected the defendant’s case, he cannot argue that he was not negligent in causing the Accident based on that version of facts.

18.  In my judgment, the camera footages incontrovertibly show that the defendant was negligent in causing the Accident. Just as the brief facts supporting the defendant’s careless driving conviction stated in the last paragraph, he failed to observe the traffic condition on his left side before he decided to exit the Interchange at Tsing King Road.

19.  I do not accept the defendant’s argument that the plaintiff was the sole tortfeasor causing the Accident, on the basis that the Road User’s Code says a driver must look out for and show consideration to other vehicles crossing in front of him/her in a roundabout, especially those intending to leave by the next exit. Such a recommendation must have premised on the assumption that there is a reasonable basis, and thus sufficient time, for the driver to observe that a vehicle in front of him/her would like to cut into his/her lane in order to leave the roundabout. In my judgment, the defendant, when he decided to cut in front of TW8898 to leave the Interchange, simply left no time to the plaintiff to notice his intention and react accordingly.

20.  I find it irrelevant that the defendant turned the left indicator on. Since VB4521 was behind TW8898 most of the time in the Interchange, it was not reasonable to expect the plaintiff to realize that VB4521’s intention was to cut in front of TW8898. I am not told that VB4521 was in any way prevented from exiting the Interchange behind TW8898. I find it reasonable for the plaintiff to only realize VB4521 actually wanted to cut into the left 1^st lane in front of TW889 8, and to take any avoidance action since then.

21.  Based on the facts I found above, I dismiss the defendant’s argument that the plaintiff ought to be found contributorily negligent. Given the abruptness of the defendant’s decision to cut into the left 1^st lane in front of TW8898, I do not think the plaintiff can be faulted for not being able to avoid any collision.

QUANTUM

22.  After the Accident, the plaintiff was brought to the Accident & Emergency Department of Princess Margaret Hospital. He complained of neck pain. The attending doctor noted that there was reduction in the range of neck rotation to the right. Examination of the plaintiff’s right arm did not reveal any problem. The plaintiff was discharged home with analgesics, and was given sick leave for 9 days.

23.  The plaintiff then sought treatment from Dr Chan Tun Kut, an orthopaedic specialist in private practice, on 23 February 2021. He told Dr Chan that there was neck pain, right hand numbness, and anterior shoulder and chest wall pain. He reported tenderness over his right levator scapula and his right scapular region. He could only rotate his head to the right and bend his neck to the right side for half the normal range. Dr Chan arranged him to see a physiotherapist and prescribed him with analgesics.

24.  Dr Chan saw the plaintiff 4 more times up to 21 April 2021. His neck pain reduced but did not completely resolve. He could rotate his head to the right more, but not to the fullest extent. Dr Chan certified sick leave up to 4 May 2021.

25.  There is no expert evidence commenting on the plaintiff’s injuries. I agree and respect the parties’ decision not to call any expert evidence. Since the plaintiff’s claim is modest, and his injuries appear insubstantial, it is certainly not costs proportionate to arrange the plaintiff to be assessed by expert orthopaedic specialist(s).

26.  I see no problem, in the context of the present case, for the plaintiff to rely on the medical reports prepared by his treating doctors to prove his injuries. But it does not mean that the court must accept whatever recorded in those medical reports on face value. It remains the cardinal principle in personal injuries litigation that the court will not assume that a treating doctor has critically assessed the genuineness and reliability of the complaints put forward by his/her patient. Therefore, the court is usually slow to accept, in a wholesale fashion, the complaints recorded by the treating doctors (particularly when the complaints are subjective) as facts.

27.  In a case like the present, it remains incumbent on the plaintiff to ensure proper medical evidence is obtained to show the injuries he sustained as a result of the Accident. For example, there might be tests or investigation done as part of the treatment, which may objectively show the extent of the injuries, eg an X-ray. Or the treating doctors carried out some objective tests to show the genuineness and reliability of the patient’s subjective complaints, eg involuntary muscle spasm upon testing. The results of these tests may provide a basis for the court to evaluate the plaintiff’s own evidence as to the extent of his injuries, and come to a view on what are the injuries genuinely sustained by him in an accident.

28.  For the present case, I am not satisfied that the plaintiff has shown, on a balance of probabilities, that he sustained anything more than trivial injuries during the Accident.

28.1.  I agree with the defendant’s submissions that the impact between the 2 vehicles during the Accident was insubstantial. This can be observed in the camera footages, in that the footages only had minimal shaking at the time of impact. It is difficult to see how the impact energy could bring significant disability to the plaintiff lasting for more than a day or two.

28.2.  If the plaintiff would like to nevertheless persuade the court that there were residual disabilities lasting for months, it is for him to adduce sufficient objective medical evidence to support his claim. With respect, there is none.

28.3.  The plaintiff’s complaints of pain were all subjective. But the treating doctors did not record the result of any objective test to allow me to assess the genuineness of such complaints. I do not accept that Dr Chan’s record on the extent the plaintiff was capable to rotate his head as the result of an objective test, without details given as to how that observation was made. There is also no report put before me as to what the treating physiotherapist observed.

28.4.  Hence, judging from the gravity of the impact, I find that the plaintiff had at most a minor pull in his neck, if at all. I do not find the plaintiff credible when he recounts the extent of his injuries. In my judgment, he has exaggerated the extent of his residual pain arising out of the Accident. Any lingering pain, if there was any at all, should have resolved within a few days.

29.  The plaintiff claims HK$110,000.00 as damages for PSLA. This is grossly excessive in light of my findings above. I find the present case comparable to Wong Shui Ming v Yeung Kam Shing [2018] HKDC 1029 (HH Judge Harold Leong; 23 August 2018); and Yuen Ka Ho v Wong Chin Man & Ors [2022] HKCFI 942 (Deputy Judge To; 6 May 2022). I award HK$6,000.00 as damages for PSLA in the present case.

30.  The plaintiff claims HK$83,388.89 as damages for his pre-trial loss of earnings as a solicitor.

31.  In the Revised Statement of Damages, he pleads that he earned HK$30,000.00 per month from February 2020 to December 2020; and HK$50,000.00 per month since January 2021. He thus adopts HK$31,666.67 as the multiplicand to calculate his pre-trial loss of earnings from 15 February 2021 to 4 May 2021.

32.  Whilst it is his choice to do so, I am perplexed as to why the plaintiff is content with HK$31,666.67 as the multiplicand. Since it is his case that he would have been paid HK$50,000.00 per month during the sick leave period but for the Accident, one would have thought that it would be reflective of the reality, and beneficial to his case, to adopt HK$50,000.00 as the multiplicand[4]. Using the 12-month average of one’s income as the multiplicand is only apt in cases where there is no stability in the injured person’s income, eg a construction worker on casual work at daily rates. Given this is his plea, he must be bound by it.

33.  Under cross examination, the plaintiff accepts that he was already a partner of his law firm when the Accident happened. He shared the profits generated from the firm’s practice. He explains that partners in his law firm also received a basic monthly salary, which was the salary reported for making his monthly MPF contributions. He puts forward a statement made by the MPF trustee of his law firm, which shows that he was only paid HK$25,000.00 for February 2021, and received no salary for March and April 2021.

34.  I am not satisfied that the plaintiff has shown, on a balance of probabilities, that he was usually paid a basic salary every month, but he was not for the 2.5 months as reported to the MPF trustee. My reasons are as follows:-

34.1.  Normally, an MPF trustee relies on the report of an employer to see how much the employer and its employer should contribute to MPF from month to month. The MPF trustee may not necessarily have direct knowledge as to whether the reported income is indeed received by the employee, save perhaps in situations where the MPF trustee is also the employer’s banker for paying salaries.

34.2.  There is no evidence put before me to show that the MPF trustee of the plaintiff’s law firm was also the firm’s banker, so the reported income was paid through the MPF trustee itself, and indeed represented the actual income received by the plaintiff from month to month.

34.3.  There should be no difficulty for the plaintiff to provide documentary evidence showing that he indeed received monthly basic salary except the 2.5 months during which he was under sick leave. But such evidence is absent. In my judgment, there is no good justification for his failure to do so. The inference is that he might actually not have lost such basic salary after all.

34.4.  Coupled with the plaintiff’s own admission that he shared the profits of the firm’s practice, I am not persuaded that he lost any income during sick leave. It is well known that partners in a law firm may delegate work to the solicitors and other staff members they employ. Without evidence showing that the plaintiff’s share of the firm’s profits dropped because of the Accident, I refuse to find that his income was indeed affected by the Accident.

35.  Based on the above, I refuse to award damages for any alleged pre-trial loss of earnings. There is no claim for any loss of MPF contributions.

36.  If I were wrong on my findings about the plaintiff’s basic salary, I would have adopted HK$31,666.67 as the multiplicand, and would adopt 9 days as granted by the A&E doctor who attended the plaintiff as the reasonable sick leave. Therefore, I would have awarded HK$31,666.67 x 9/30 = HK$9,500.00 as damages for the plaintiff’s pre-trial loss of earnings.

37.  The plaintiff claims HK$12,230.00 as medical expenses. The bulk of these expenses was incurred by seeking treatment from Dr Chan.

38.  Since it is my judgment that the plaintiff only suffered trivial injuries, I think it was reasonable for the plaintiff to seek treatment from Dr Chan once, and to receive physiotherapy once. There is no reason why the plaintiff cannot recover expenses incurred in seeking medical treatment in the private sector: Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd [2015] 5 HKC 570 at §64. I award HK$3,000.00 as the rounded up figure based on the receipts.

39.  The plaintiff claims HK$4,200.00 as travelling expenses. I award damages at HK$500.00.

40.  The plaintiff claims HK$2,000.00 as tonic food. I do not accept it is reasonable for the plaintiff to consume tonic food to aid the recovery of just trivial injuries.

41.  The plaintiff claims that he spent HK$61,000.00 as the cost to repair TW8898 and the towing fee. This claim is supported by an invoice dated 15 March 2020 issued by Yau Shing Motor Vehicle Services Limited for HK$60,300.00, together with the corresponding receipt dated 31 March 2021; and a receipt dated 20 February 2021 for HK$700.00 as the towing fee.

42.  Under cross examination, the plaintiff explains that he first asked his friend to drive TW8898 back to his home after the Accident, as he was taken to the hospital by ambulance. His friend told him that something felt off with TW8898, so he opted to have it towed to the repairer on 20 February 2021. The repairer provided a quotation of HK$115,294.00 for fixing TW8898. His motor insurer then engaged loss adjusters to assess the damage sustained by TW8898. By a motor survey report dated 18 March 2021, the loss adjusters assessed the reasonable repair cost to be HK$60,300.00. He and the repairer both accepted the loss adjuster’s assessment.

43.  The plaintiff’s evidence on how TW8898 was repaired at a cost of HK$60,300.00 was commonplace in Hong Kong as to how damaged vehicles are dealt with after a minor traffic accident. His evidence is supported by documentary evidence. I accept his evidence on this part of the claim true and accurate. I also accept that the repair was necessitated by the damage sustained during the Accident.

44.  I award HK$61,000.00 as damages for the repair and towing of TW8898.

45.  In summary, I award the plaintiff damages in the amount of HK$70,500.00.

46.  I accept the plaintiff’s claim that he is entitled to interest for general damages at 2% per annum from the date of the service of the Writ to the date of this judgment; and at half judgment rate on all special damages from the date of the Accident to the date of this judgment. Interest shall accrue on all damages at the judgment rate from the date of this judgment onwards.

THE COUNTERCLAIM

47.  Based on the findings above, the defendant’s counterclaim must be dismissed.

48.  In the event that it becomes necessary, I would have accepted the cost of repairing VB4521 at HK$62,647.00 as reasonable, and HK$5,000.00 as damages for the loss of use of VB4521 for 10 days during repair as reasonable as well. The defendant would also have been entitled to interest, similar to what I have awarded to the plaintiff on the special damages.

COSTS

The certificates for time estimate

49.  When one reads the parties’ respective certificates for time estimate, the problem is obvious.

50.  The plaintiff estimated that examination-in-chief of himself would take 4 hours; the defendant similarly estimated that the examination-in-chief of himself would take 4 hours, and his other witness Ms Luk, 2 hours.

51.  These estimates are obviously at odds with how a trial in a civil matter is conducted nowadays, and is also inconsistent with §2 of the Court Order dated 24 November 2022 that witness statements shall stand as evidence-in-chief unless the court directs otherwise. Any reasonable consideration of the evidence can never give rise to an impression that “topping-up” questions during examination-in-chief would take long.

52.  Next, the defendant estimated that cross examination of the plaintiff would take 12 hours. This is, at any rate, beyond reasonable bounds, since the present case concerns a split-second collision, and injuries which are insubstantial. A similar problem, albeit to a lesser extent, exists for the plaintiff’s estimate of 4 hours for cross examining the defendant, and 2.5 hours for cross examining Ms Luk[5]. Since the plaintiff’s cross examination would be focusing on liability only, it is not understood how the suggested time could be reasonably necessary.

53.  In my judgment, this is a typical case suitable to be included in the Running List with an estimate length of trial of 2 days. I do not think the Master should be blamed for allowing parties to set the present case down for 4 days. The Master was not as familiar with the evidence as the parties; nor did she enjoy the luxury of time to investigate the accuracy of the parties’ estimates. She was perfectly entitled to raise requisitions on estimates that were obviously unreasonable; but upon the parties’ reassurance that 4 days would be necessary, the Master was entitled to assume that parties had exercised their good sense.

54.  It must fall upon the trial judge, either in preparation of the Pre-Trial Review (which none was fixed for the present case) or the trial, to consider the reasonableness of the time estimates put forward by the parties. The trial judge has to penalize parties for grossly erroneous estimates; otherwise the underlying objectives of the Civil Justice Reform will be rendered empty talks.

55.  I am of the view that the legal representatives on both sides fell far short of assisting the court to promote procedural economy in the conduct of proceedings, and to ensure that judicial resources are distributed fairly. Because of the estimate trial length of 4 days, hearings for other cases are naturally delayed to accommodate the present case. The 2 hearing dates vacated simply went wasted.

56.  In my judgment, it is only fair and just to order the legal representatives to bear on their own the costs of and occasioned by the preparation of the certificates for time estimate, and the application for setting down.

Correspondence enclosed in the trial bundle

57.  The trial bundle goes up to 245 pages. Of those, parties enclose 27 items of correspondence (mostly inter-solicitor correspondence) totaling some 60 pages.

58.  I am grateful to Ms Tina Mok, counsel for the plaintiff, who has painstakingly set out the chronology of all the inter-solicitor correspondence across different issues.

59.  On 23 March 2024, the defendant’s solicitors wrote to (or replied to, which is irrelevant for the present purpose) the plaintiff’s solicitors to seek their comment and approval of the draft trial bundle index. The draft index contained 83 items for correspondence between 17 August 2022 and 19 January 2024.

60.  The parties ultimately managed to agree to include 27 items of correspondence in the trial bundle. I do not think I need to set out how such agreement was obtained; indeed, I am not even sure whether I can do so by simply reading all the correspondence.

61.  The 27 items of correspondence are largely irrelevant to the issues to be considered at the trial. Most pertain to requests for specific discovery of documents. Some concern the case management directions to be obtained from the PI Master. I cannot see the reason why these letters have to be placed in the trial bundle.

62.  Ms Mok submits that these letters are included in the trial bundle at the request of the defendant’s solicitors; there came to a stage where the plaintiff’s solicitors no longer found it costs effective to continue to engage with the defendant’s solicitors on this. From my own reading of the inter-solicitor correspondence in the trial bundle and in the court file, I agree with Ms Mok.

63.  I do not think it will ever be open to the defendant’s solicitors to argue that they insisted to include these letters in the trial bundle on the defendant’s instructions. The duty to prepare trial bundles in an efficient manner rests on the legal representatives; insofar the lay client gives instructions contrary to the underlying objectives of the Civil Justice Reform, it is incumbent on the legal representatives to explain to their client and persuade him/her to retract such instructions.

64.  Thus, I am of the view that the costs of and occasioned by the agreement of trial bundle index should be borne by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed. I further clarify, for the purpose of taxation, that the plaintiff’s solicitors acted reasonably with respect to seeking agreement from the defendant’s solicitors on the draft trial bundle index.

Correspondence concerning the preparation of the trial bundle

65.  When setting the present case down for trial, the Master ordered the plaintiff to lodge the trial bundle 14 days before the commencement of the trial.

66.  Since at least 15 April 2024, the defendant’s solicitors have been writing to the plaintiff’s solicitors, requesting the plaintiff to provide a paginated trial bundle within 7 days. Such requests remained incessant despite the plaintiff pointing out the effect of the order granted by the Master.

67.  Out of courtesy, the plaintiff’s solicitors provided the defendant’s solicitors a draft trial bundle on 22 May 2024. However, the defendant’s solicitors replied on 26 May 2024 that, inter alia, the full Writ of Summons (instead of the extract) should be included, despite the previous agreement on the trial bundle index. Further correspondence ensued as to whether the plaintiff had included all relevant documents in the trial bundle.

68.  The plaintiff’s solicitors finally wrote to the Master on 8 July 2024 to seek further directions. On 8 August 2024, the Master affirmed the terms of her order. She directed the parties to report whether they required a hearing to resolve their differences. By a joint letter dated 12 August 2024, the parties confirmed that there was an agreement on the preparation of the trial bundle, and no hearing would be necessary.

69.  Surprisingly, on 7 November 2024, the defendant’s solicitors wrote to the court to repeat their previous complaints, and apply for a variation of the order of the Master so that the plaintiff would have to lodge and serve the trial bundle 30 days before the trial. It was stated that time would be required to ensure that all documents fair to both parties would be included in the trial bundle.

70.  The matter then came to me by late November as the trial judge assigned to hear the trial commencing on 24 December 2024. I gave directions on 21 November 2024 that, should the defendant wish to vary the timetable laid down and affirmed by the Master, he should take out an application by Summons returnable before me on 27 November 2024. In the end, no application was taken out by the defendant.

71.  Ms Mok submits that the complaints made by the defendant’s solicitors appear to have stemmed from the fact that the they relied on an outdated draft index, instead of the one agreed upon and submitted to the court on 5 April 2024. I agree. I also find it outrageous for the defendant’s solicitors to suggest that they needed more time to “confirm that correct evidence are [sic] all included in the trial bundle, especially the correspondence between the parties”[6].

72.  All these letters sent by the defendant’s solicitors show that they were worse than a circuit show. Agreeing the trial bundle index and adhering to the agreed index to prepare the trial bundles are routine and elementary tasks for a litigation solicitor. I cannot accept that all these letters were not sent because of the gross incompetence of the defendant’s solicitors (and in particular, Mr Yau Chap Yin of the defendant’s solicitors, who appears to be the handling solicitor).

73.  I am of the view that the costs of and occasioned by the preparation of the trial bundle should be borne by the defendant’s solicitors personally, to be taxed on an indemnity basis if not agreed. Again, I clarify for the purpose of taxation that the plaintiff’s solicitors acted reasonably with respect to corresponding with the defendant’s solicitors and the court over the preparation of the trial bundle.

The defendant’s complaint of delay in the service of the trial bundle

74.  Respite was not forthcoming.

75.  On 12 December 2024, the defendant’s solicitors wrote to my clerk to complain that the plaintiff failed to file and serve the trial bundle no later than 14 days before the trial. The letter claimed that the plaintiff only served the trial bundle on 10 December 2024; it was argued that “no later than 14 days” meant there ought to be 14 days in between the commencement of the trial (24 December 2024) and the date of the service of the trial bundle.

76.  I find the complaint unsustainable. If the contention of the defendant’s solicitors were right, it would have rendered Order 3 rule 2(4) of the Rules of the District Court otiose. Whilst any breach of the timetable laid down by the court should not be condoned, I cannot see any justification for raising this petty complaint even if the defendant were right that the plaintiff was guilty of serving the trial bundle 1 day late. The defendant could well have started preparation of the trial even before 10 or 11 December 2024, since he knew full well what documents would be included in the trial bundle based on the agreed trial bundle index. Any prejudice caused by any alleged delay would be minimal. This is different from a case in which parties delayed in filing documents or submissions with the court within time – as this would disrupt the precious reading time the court set aside to prepare for a hearing based on its diary.

The appropriate costs order

77.  The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel, subject to the wasted costs order I set out below. In my judgment, the defendant should be penalized by indemnity costs for putting forward false evidence on how the Accident happened. Judicial resources are wasted, to the extent that I find it to be an abuse of the process of the court, for the defendant to pursue a hopeless defence on liability all along.

78.  The defendant shall pay the plaintiff’s costs on the issue of quantum in the main action at a scale commensurate to those awarded by the Small Claims Tribunal, subject to the wasted costs order I set out below. The plaintiff recovers damages within the jurisdiction of the Small Claims Tribunal. I find that he should have known at the commencement of the present case that he would only have reasonable prospects to recover damages within the jurisdiction of the Small Claims Tribunal. I also find it appropriate to award costs on this basis given the plaintiff’s failure to put sufficient evidence before me to prove his alleged pre-trial loss of earnings. For procedural economy, I summarily assess the plaintiff’s costs on the issue of quantum at HK$5,000.00.

79.  I order the legal representatives to bear their own costs with respect to the preparation of the certificate of time estimate, and the application to set down.

80.  I order the costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters. The defendant’s solicitors shall not recover their own costs on the agreement of the trial bundle index and the preparation and service of the trial bundle from the defendant as well. Since I have invited submissions from counsel over the course of the trial, I do not think it is necessary nor costs proportionate to allow the defendant’s solicitors another chance to explain themselves before I make up my mind. In any event, I am now granting a costs order on nisi basis.

81.  I do not think it is necessary for there to be any specific costs provision in relation to the defendant’s disclosure of the amount of the sanctioned payment in his written closing, as the fault did not derail the trial in any significant way.

CONCLUSION

82.  I enter judgment in favour of the plaintiff for HK$70,500.00. The defendant’s counterclaim is dismissed.

83.  There shall be a costs order nisi as per §§77-80 above. It shall become absolute unless there is any application to vary it within 14 days from today (including any application to vary the wasted costs order).

84.  I must record that Ms Mok has put in her best efforts to assist this court.