CHU WAI SHAN v. HONG KONG HOUSING AUTHORITY AND ANOTHER

HCPI 474/2020

[2025] HKCFI 5653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 474 OF 2020

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D E C I S I O N

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Introduction

1.  This is the Plaintiff’s application for leave to appeal against my decision[1] (“Decision”)  dismissing the Plaintiff’s appeal against the decision of Master Kot, in which the learned Master refused leave to the Plaintiff to accept the Defendants’ sanctioned payment out of time.  

2.  The main issue before Master Kot was whether there is a change of circumstances that render it unjust to allow the Plaintiff to benefit from the sanctioned payment. 

3.  The relevant change of circumstances is that part of the parties’ joint neurosurgical expert report (“JNR”)  was expunged and replaced by a joint psychiatric expert report (“JPR”), where the experts opined that the Plaintiff did not suffer from any PTSD and only entitled to a maximum of 6 months’ sick leave as opposed to 3 years, as originally opined under the JNR. 

4.  In the Decision, I found that this is a change of circumstances that render it unjust to allow the Plaintiff to accept the sanctioned payment, as the JPR put the case under a wholly different complexion and the likely damages to be awarded has become much less than the Defendant could have anticipated when making the sanctioned payments. 

Proposed grounds of appeal

5.  The Plaintiff advanced 2 proposed grounds of appeal as follows:

(1)  The Court erred in holding that the expunction of §§7.2 -7.7 of the JNR and the filing of the JPR put the case under a wholly different complexion, and it would be beyond the Defendants’ contemplation when they paid in the sanctioned payments (“Ground 1”).

(2)  It was wrong for the Court to form a view at §21 of the Decision that "the possible amount of damages to be awarded is substantially reduced to an extent that it might well below $1 million" (“Ground 2”). 

Discussion

6.  For Ground (1), as Bharwaney J put it in Rai v Pacific Construction (HK)  Co Ltd[2], the court’s discretion to grant or refuse leave to accept a sanctioned offer/payment after the expiry of 28 days from the date it was made was unfettered.  

7.  As submitted by Mr Ho, counsel for the Defendants, an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law or in disregard of principle or under a misapprehension as to the facts, or that he took into account irrelevant matters, or failed to exercise his discretion, or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible”[3]. 

8.  The written submissions of Mr Lin, counsel for the Plaintiff, repeated substantially his submissions in the hearing before me. I agree with Mr Ho that the Plaintiff’s present application is an attempt to have a second bite of the cherry, hoping that the Court of Appeal will come to a different view from this Court by presenting the same submissions again. This is a misuse of the appellate process. 

9.  Regarding Ground 2, Mr Lin complained that this Court has conducted a mini trial of the issues by giving a remark that “given the expert evidence available at present, the possible amount of damages to be awarded is substantially reduced to an extent that it might well below $1 million”. 

10.  The complaint of Mr Lin is misconceived.  With the JNR expunged and the expert opinions in the JPR, it would be obvious and indisputable that the possible damages will be significantly reduced.  It would not be necessary for this Court to conduct a mini trial before taking the view that the damages awarded might be in the end below $1 million. 

11.  The Plaintiff also argues that there are other reasons in the interests of justice that leave should be allowed because Rai v Pacific Construction (HK)  Co Ltd[4]and Polyever Holdings Ltd v Savills (HK)  Ltd[5]have not been considered by the Court of Appeal. 

12.  Mr Lin submitted that the question as to what should constitute a change of circumstances is an important legal question which ought to be submitted to the Court of Appeal for determination. 

13.  With respect, there is no merit in Mr Lin’s argument as what constitutes a change of circumstances that may render it unjust to allow a party to accept a sanctioned payment is fact-sensitive and the real dispute in the present application is not on the relevant legal principles. 

14.  I see no reasonable prospect of success of the Plaintiff’s intended appeal and leave to appeal is therefore refused. 

15.  I make a costs order nisi that costs of this application be to the Defendants to be taxed if not agreed. This costs order nisi will become absolute unless parties apply to vary within 14 days.