LIU CHUN KOW JOE v. LEE SAU WING

HCPI 399/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.399 OF 2001

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R U L I N G

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1. This is an application by the defendant for leave to amend the Answer to the Revised Statement of Damages as per the Proposed Amendments annexed to the summons of 2 September 2005.

2. The Proposed Amendments are contained in paragraph 4 of the draft Amended Answer to the Revised Statement of Damages.  That paragraph essentially pleads that the plaintiff is a malingerer and gives particulars of the malingering and/or false exaggeration of the plaintiff.  Those particulars are contained in Particulars (1) and (2), with Particular (2) extending from sub-paragraphs (a) to (l).  

3. Having heard the parties in submission, I have no hesitation in refusing leave relating to Particular (2) and from sub-paragraph (a) to (k) thereof of the Proposed Amendments.  That essentially means that only the Proposed Amendments in Paragraph 4 with Particular (1) as well as sub-paragraph (l) of Particular (2) would be allowed.

4. The short reasons for my decision above are as follows.  The disallowed Proposed Amendments, namely Particular (2) as well as sub-paragraph (a) to (k) inclusive thereof, offend in two aspects.  Firstly, what have been pleaded in the disallowed Proposed Amendments are the interlocutory applications in this matter for discovery by the defendant and orders made by the court relating to such discovery in this case.  These are matters already dealt with by the court and there will be records in the court file as to such applications and such orders.  Accordingly, those matters pleaded should not and cannot form part of the pleadings.  Secondly, the purpose of the Proposed Amendments relates to the plaintiff’s malingering of his injuries and disabilities.  At the very best, the disallowed amendments can only go to the credibility of the plaintiff with a view to showing his alleged obstructive behaviour in his failure to make proper discovery.  Essentially therefore it goes to credibility.  Credibility is a matter of evidence and not material or relevant facts of the malingering.  Being a matter of evidence, it needs not and should not be pleaded.

5. Going one step forward in dealing with Miss Lau’s submission when she asked rhetorically why could not the plaintiff be cross-examined as to his deliberate concealing of medical reports relating to his pre-existing condition before the accident, the short answer to that rhetorical question posed by Miss Lau is that at the trial, there has to be a limit how far a cross-examiner can go in cross-examining on credibility and the trial judge has an overriding discretion to allow or disallow questions going solely to credit or credibility.  If a proper basis can be made out as to the necessity of questions in cross-examination going to credit or credibility of the plaintiff, a trial judge may well allow such cross-examination depending also on whether any objection is taken.  However, that does not mean that the defendant has an entitlement to plead matters which go to credibility under the guise of particulars of malingering.

6. For these reasons, therefore, I am prepared only to allow the substantive part of paragraph 4 as well as Particular (1) and also sub-paragraph (l) of Particular (2) of the Proposed Amendments.

7. In so allowing those parts of the Proposed Amendments, I should state that whether or not the defendant at the end of the day can substantiate the amendments pleaded is not a matter that needs to be considered for present purposes in allowing those amendments at this stage. 

8. However, looking at sub-paragraph (l) of Particular (2), the wording of the first sentence will need to be tidied up in view of my earlier ruling disallowing the rest of Particular (2).