SINGH CHAMKAUR v. RICHARD ETHAN LATKER t/a SINO INDIAN TRADE ENTERPRISES

HCMP 1545/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1545 OF 2012

(ON AN INTENDED APPEAL FROM DCPI NO. 1323 OF 2009)

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  This is the defendant’s application for leave to appeal against a judgment of Deputy District Judge K.H. Hui dated 31 May 2012. By his judgment, the Deputy Judge held the defendant liable for personal injuries sustained by the plaintiff.

2.  The defendant believes that the claim is wholly fraudulent, being the product of a conspiracy between the plaintiff and various others.  Rather than being injured in the course of his employment by the defendant, as the plaintiff claims, the defendant says the plaintiff sustained his injury while joyriding on the defendant’s motor scooter.  The defendant maintains that the plaintiff’s claim is an attempt to extort money from him.

3.  On 14 May 2012, the day before the trial of the action below, the applicant had applied to the Deputy Judge to stay or adjourn the trial pending the outcome of investigations by the ICAC into, amongst other things, the defendant’s allegations that the plaintiff was making a false claim.  The Deputy Judge refused this application on the basis there was nothing to show a real likelihood that the ICAC investigation would produce anything material.

4.  On the same occasion, the Deputy Judge also dismissed an appeal by the defendant against an order made by a master in relation to the filing of witness statements and directions relating to other evidential matters.  Since that order was dated 5 July 2011, it was substantially out of time.

5.  On 15 May 2012, before the commencement of the trial that day, the defendant sought an adjournment to appeal against the Deputy Judge’s decisions of the previous day and to prepare his case.  The Deputy Judge refused this application because he considered it lacked merit and because he considered the defendant had had ample time to prepare for trial.

6.  It is to be noted that the defendant had failed to comply with an unless order dated 2 November 2011 to file witness statements and medical evidence, so he was debarred from calling any witnesses at the trial.

7.  The defendant chose not take part in the trial which proceeded in his absence on 15 and 16 May 2012, the plaintiff being represented by counsel.

8.  The Deputy Judge found for the plaintiff and assessed damages.

9.  By summons dated 14 June 2012, the defendant applied to the Deputy Judge for leave to appeal against the Judgment below pursuant to s. 63A(2) of the District Court Ordinance (Cap. 336).  The Deputy Judge heard the application for leave to appeal on 22 June 2012 and gave a Ruling dismissing it.

10.  By a summons dated 25 July 2012, the defendant has renewed his application to this Court for leave to appeal against the Judgment.  The handwritten grounds of appeal stated on the summons are:

“Dist Judge failed to consider documented medical condition of the defendant

Dist Judge failed to consider credible allegations official malificiance [sic] in the dist crt.  Lack of credibility in proceedings on perjury, appearance of corruption.”

11.  The application to this Court is late since the defendant’s summons should have been issued within 14 days of the Deputy Judge’s refusal of leave (RDC O.58 r.2(4A)). However, it is clear that the defendant was trying to issue such a summons as early as 22 June 2012.  Insofar as an extension of time might be necessary, it would in any event be necessary to consider the merits of the proposed appeal and so we shall proceed to consider if the application meets the relevant test of an appeal with a reasonable prospect of success or satisfies the alternative “interests of justice” limb of s. 63A(2).

12.  In a document entitled “Affidavit and Submissions” dated 6 June 2012, the defendant sets out at length his case that the plaintiff’s action against him is fraudulent and makes various complaints against the Department of Justice and various officers of the Court and members of the Judiciary.

13.  However, the defendant had the opportunity of adducing evidence in support of his case at the trial below.  The fact that he was debarred from calling witnesses was due to his own default in complying with the unless order.  Even without witnesses, he could have cross-examined the plaintiff and put to him that the case was fabricated.  He did not do so, choosing instead not to take part in the trial process.

14.  The resolution of conflicting stories such as those represented by the plaintiff’s claim for personal injuries and the defendant’s contention that the claim is bogus depends on evidence.  As already observed, no evidence was adduced by the defendant, due to his own default, and he did not challenge the plaintiff’s evidence by cross-examination.  The defendant is not now suggesting that there is new evidence, not available to him at the time of the trial, which he is relying upon in support of the appeal.

15.  In the circumstances, we are satisfied that the defendant has not demonstrated that the proposed appeal is one which enjoys a reasonable prospect of success nor that there is some other reason in the interests of justice why the appeal should be heard.  The defendant has not shown that there is sufficient evidence to satisfy the burden of demonstrating fraud on the part of the plaintiff.  Whether the evidence which the defendant anticipates will be revealed by the ICAC investigation is such that might, in the future, support an action by the defendant for fraud is a matter of speculation and this Court cannot act at the present time on the mere hope, however confidently held by the defendant, that such evidence does in fact exist.

16.  We therefore dismiss the defendant’s summons.

17.  Since the plaintiff has not submitted a statement in opposition to the application, we decline to make any order as to the costs of the defendant’s summons for leave to appeal.