KWAN YIM KWAN PEGGY v. NAMKUNG PROMOTIONS (WORLDWIDE) LTD

CACV 144/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 144 OF 2006

(ON APPEAL FROM HCPI 938 OF 2004)

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REASONS FOR JUDGMENT

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Hon Cheung JA :

1. On 19 April 2007, we allowed the plaintiff’s appeal and ordered a retrial of the action.  These are my reasons.

The facts

2. The plaintiff sought damages against her employer, the defendant, for personal injuries suffered by her while she was working in the defendant’s premises.  Her claim was dismissed by Deputy High Court Judge Wright (as he then was).

3. The plaintiff gave evidence herself while the defendant called two witnesses, one of whom was Mr. Luk Wan Fung (‘Mr. Luk’).  He was the Senior Engineering Manager of the defendant and the plaintiff’s supervisor.  At the trial he no longer worked for the defendant.

4. The plaintiff’s case in brief was that she was asked by Mr. Luk to store some cardboard sheets which could be folded into boxes under her desk.  On the day of the accident, she was trying to obtain the sheets when they collapsed and injured her eye.  The judge dismissed her case.

5. Mr. Luk denied that he had asked the plaintiff to store the cardboard sheets under her desk.  He said there was a storeroom for the cardboard sheets to be stored and he had in the past repeatedly asked the plaintiff to remove the articles under her desk.

6. This is what the judge said of the plaintiff :

 Whilst I accept that the plaintiff does appear to have sustained an injury to her eye on the day in question she does not satisfy me that it occurred in the manner in which she claims.  There is no credible evidence before me to show, even on a balance of probabilities, how she sustained the injury.  The plaintiff was a singularly unimpressive witness.’

7. The judge accepted the evidence of Mr. Luk.  He held,

‘ 19.        Mr Luk is no longer employed by the defendant.  There can be no sensible suggestion that he is biased in its favour.  He gave his evidence in a perfectly straightforward and creditworthy manner.  I accept it in its entirety.’

New evidence

8. At the beginning of the appeal, the plaintiff asked for leave to adduce two documents.  One is a copy of a cheque dated 27 May 2005 for the sum of $1,250 issued by the defendant’s solicitor to Mr. Luk.  The other appeared to be a deposit slip dated 27 March 2006 of $10,000 in favour of Mr. Luk.  Judgment was given on 8 March 2006.  The plaintiff said that she obtained these documents in the taxation hearing in respect of the defendant’s costs of the action below.  The costs clerk for the defendant informed the Taxing Master that these documents evidenced payment by the defendant to Mr. Luk for him to be a witness because Mr. Luk had said that he would not attend Court unless he was paid.  The plaintiff submitted that the relevance of the documents was in respect of the credibility of Mr. Luk, bearing in mind what the judge said about him in paragraph 19 of his judgment.

9. Mr. Sakhrani, counsel for the defendant, was taken by surprise by the application, but probably out of practical consideration, he did not ask for an adjournment of the appeal to consider the position.  He himself was not aware at the trial that payment was made to Mr. Luk.  He informed the Court that that payment was indeed made to Mr. Luk to reimburse Mr. Luk for his loss of income in attending the trial as a witness.  He is an engineer.  The defendant’s solicitors had ensured that Mr. Luk was only paid according to his hourly charge.  The costs clerk denied that he had made the statement as alleged by the plaintiff.

Our view

10. We admitted the new documents as they satisfied the conditions required for their admission.  Arising from this admission, it is clear to us that payment of money to Mr. Luk of a not insubstantial sum is a matter that the trial judge should be aware of before he was to make findings on the credibility of the witnesses.  This may or may not affect his assessment but clearly it was a relevant factor to be considered by him.  Unfortunately he was not aware of this.  It is clear that the case turned on the assessment of the credibility of the witnesses and not simply on inferences to be drawn on unchallenged facts.  This Court is not in a position to say that notwithstanding the payment the judge was still entitled to his view on the credibility of the witnesses.

11. On this ground alone and without going into the merits of the appeal, we held that the appeal must be allowed.  The judgment below was set aside and that the case was ordered to be retried before another judge.  We further ordered the costs below be in the cause of the retrial.  The costs of the appeal be the plaintiff’s costs in the cause of the retrial.  In other words the plaintiff will only be entitled to the costs of the appeal if she succeeded in the retrial.  If not, there will be no order as to costs of the appeal.

The correct approach

12. We would like to add that a solicitor who is faced with a request by a non-expert witness to be reimbursed for the loss of income for attendance in Court must inform him that the reimbursement is subject to the approval of the Court and must disclose this fact to the Court before the witness gives evidence.

Hon Waung J :

13. I agree.

Hon Fung J :

14. I agree.