LIU WAI KWOK v. LUI CHI WAI

HCPI 36/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 36 OF 2008

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D E C I S I O N

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1.  The plaintiff is seeking leave to adduce witness statements from 3 additional witnesses.  The case has already been set down in the Running List with 2 days’ reserved.

2.  The deceased died in a fatal traffic accident in 2005.  The defendant was convicted of careless driving and was fined $4,000 and disqualified from driving for 6 months.

3.  The plaintiff has 1 witness mainly on quantum.  The defendant has 1 witness on liability.  The 3 additional witnesses sought to be called are all on quantum.  Mr Lee is a sub-contractor of the deceased, Mr Lau was an employee, and Mr Chan a customer.

4.  Mr Lee talked about is business dealings with the deceased and the estimated the income of the deceased, but there was no business record of the dealings.  Mr Lau, the employee, could speak of his monthly wages at the time, and estimated the turnover, but he did not know about the expenses.  He nevertheless gave income estimation more or less the same as Lee as well as the plaintiff, the existing witness on the list.  Mr Chan, the customer, talked of his own dealings with the plaintiff.

5.  Ms Wong, for the defendant, objects to the belated application on 2 grounds:

(1)  some of the evidence are of a hearsay nature; and

(2)  the evidence of Lau that he worked for the deceased up until the traffic accident was contradictory to the notice filed at the BR office stating the cessation of business on 1 May 2004 (over a year before the accident).

6.  The cessation notice on record is not disputed by the plaintiff, but he sought to adduce the oral evidence of Lau to the contrary effect.

7.  The accident occurred in 2005.  The explanation of lateness or delay was the difficulty of locating the subject witnesses.

8.  I have considered the nature of the existing evidence, the nature of the new evidence, and the lateness of the application, especially that the case has already been set down, and the application is refused.

9.  I awarded gross sum costs of $2,400 to the defendant in any event.