CHAN MING KIT v. LUK KWOK KEUNG

DCPI 1964/2022

[2026] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1964 OF 2022

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DECISION

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1.  I handed down my Judgment for this case on 30 June 2025 (see [2025] HKDC 1047), by which I found in favour of the plaintiff and awarded him HK$70,500.00 in damages. I also made the following costs order nisi:-

1.1.  The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel, subject to the wasted costs order in paragraphs 1.3 and 1.4 below[1].

1.2.  The defendant shall pay the plaintiff’s costs on the issue of quantum in the main action at a scale commensurate to those awarded by the Small Claims Tribunal, subject to the wasted costs order in paragraphs 1.3 and 1.4 below, and summarily assessed at HK$5,000.00[2].

1.3.  The legal representatives do bear their own costs with respect to the preparation of the certificate of time estimate, and the application to set down[3].

1.4.  The costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters[4].

2.  I adopt the definitions used in the Judgment unless otherwise stated.

3.  With extensions of time granted by the court, the defendant issued a summons on 19 August 2025 (“the Appeal Summons”) for leave to appeal against the Judgment, on the grounds contained in the draft notice of appeal annexed thereto.

4.  Also with extensions of time granted by the court, the defendant issued another summons on 29 September 2025 (“the Costs Summons”) to vary the costs order nisi given in the Judgment. I set out below in verbatim the order sought in the Costs Summons:-

“The costs nisi as stated in paragraphs 77 to 80 (except paragraph 79) of the Judgement be varied as following:

(1) In paragraph 77 of the Judgement, namely: The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel. This costs nisi is subject to the appeal where leave to appeal is being applied for. Even if the appeal is not allowed, which is denied, there is no order for separate trial so that the summarily assessment on the issue of quantum (should be the action) at HK$5,000.00 on the last sentence of paragraph 78 of the Judgement shall be inclusive of the costs on (i) issue of liability of the main action; and (ii) the counterclaim, so that the costs on (i) issue of liability for the main action and; (ii) the counterclaim in this case is nil.

(2) There will not be any application for costs variation on the costs as stated in paragraph 79 of the Judgement as costs on the preparation of the certificate of time estimate and the application to set down is minimal, subject to the intention of the plaintiff’s solicitors.

(3) The costs as stated in paragraph 80 of the Judgement, namely: the costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters be varied ‘to be paid by the plaintiff’s solicitors personally’ and

(4) Costs of this application be to the Defendant’s solicitors.”

5.  Again, with extensions of time granted by the court, the defendant filed 4 sets of written submissions respectively on 29 September, 31 October, 25 November and 2 December 2025. The plaintiff filed his written submissions in response to the 2 Summonses on 13 November 2025.

6.  I put on record that various extensions of time were necessitated through no fault of any party or their legal representatives. The fact that multiple extensions were required does not feature in my consideration of the merits of the defendant’s applications as contained in the 2 Summonses.

THE APPEAL SUMMONS

7.  I shall first consider the defendant’s application for leave to appeal against the Judgment.

8.  It is trite that the defendant shall be granted leave to appeal against the Judgment if his intended appeal is reasonably arguable; or there are some reasons to grant leave to appeal in the interest of justice. Reasonable prospect in an intended appeal means the merits are more than fanciful, but there is no need to show that it will probably succeed: SMSE v KL [2009]4 HKLRD 125.

9.  I shall go through the grounds stated in the draft notice of appeal in the sequence they are set out therein.

Paragraphs a to c: error in law

10.  The defendant submits that I erred in law when I set out in paragraph 5 of the Judgment that the present case was no different from any other run of the mill traffic case, in that what I said was contrary to the reasonableness test that I should adopt in evaluating his liability.

11.  These submissions must be rejected on the obvious basis that the defendant misinterpreted paragraph 5 of the Judgment. In an ordinary negligence claim arising out of a traffic accident, the court invariably applies the reasonableness test to consider the liability of the defendant driver. The Judgment is no different; I find that the defendant cannot point to any part of the Judgment that suggests otherwise. I agree with Ms Tina Mok, counsel for the plaintiff, that the defendant has taken that particular sentence of paragraph 5 of the Judgment out of context.

12.  The defendant further submits that I erred in paragraph 19 of the Judgment, in that I should have found the plaintiff liable as TW8898 driven by him failed to give way to VB4521 driven by the defendant, when VB4521 intended to leave the Interchange at the Tsing King Road exit.

13.  I do not find this reasonably arguable. I have already dealt with the defendant’s argument in paragraph 16 of the Judgment. What was important was my finding that VB4521 came up from behind at great speed[5], such that when it sought to cut into the left 1^st lane in front of TW8898, the defendant left too little time for the plaintiff to be aware of the presence and intention of VB4521 to exit the Interchange. It has been repeatedly stated by the Court of Appeal that a simple rehash of arguments already deployed at the original hearing, without showing how the decision appealed against erred, is not in itself sufficient for leave to appeal to be granted: see e.g. S v C [2021] HKCA 1372 at §11. The defendant does not actually show how I erred in my analysis.

Paragraph d: misapplication of judicial notice

14.  Under this paragraph, I am said to have failed to take judicial notice that private vehicles in Hong Kong, like TW8898 driven by the plaintiff, are equipped with side mirrors to allow drivers to take notice of the traffic condition around the vehicle. It is argued that I did not consider the plaintiff’s failure to use the side mirrors to identify the presence of VB4521.

15.  I do not agree that this argument only pertains to an alleged failure to take judicial notice. In substance, it is an attack on the finding of fact made in the Judgment that the plaintiff did not see nor realize that VB4521 would like to exit the Interchange ahead of TW8898 until split seconds before VB4521 cut into the left 1^st lane.

16.  As Ms Mok submits, with respect to a challenge against factual findings made by a trial judge, the appellant has to overcome a very high threshold in order to succeed. The Court of Appeal will only intervene if the trial judge’s factual finding is plainly wrong, bearing in mind that it does not enjoy the advantage available to the trial judge who received the evidence first-hand: Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336.

17.  In my decision, the defendant has not shown he has any reasonable chance to meet the requisite threshold to attack my factual finding. I came to my findings after considering the evidence given by the witnesses, and after comparing them with what could be observed from the camera footages made available at trial. The defendant has not pointed to any part of the evidence I allegedly considered in a wrong way. I also think Ms Mok’s submissions persuasive, in that the defendant’s negligence lied in cutting in front of TW8898 in the circumstances that the plaintiff did not have sufficient time to notice the presence of VB4521 and react accordingly. What the plaintiff might be able or not be able to observe from the side mirrors of VB4521 prior to the Accident was quite beside the point, even if (at all) the plaintiff was exhaustively cross examined as to the circumstances pertaining to that at trial.

18.  I do not think the defendant should be granted leave to appeal based on this ground.

Paragraph e: factual errors

19.  The defendant repeats his submissions that I erred in my factual findings that the plaintiff had insufficient time to react to VB4521 cutting in front of TW8898.

20.  Based on my reasoning above, there is no substance under this ground.

Paragraph f: irrelevant consideration of indicators

21.  The defendant claims that I erred in dismissing the fact that VB4521 turned on its left indicator as irrelevant: see paragraph 20 of the Judgment.

22.  Again, this piece of evidence goes to my factual finding that the plaintiff did not have proper time to react to VB4521 cutting in front of him into the left 1^st lane just before the Accident. The defendant has not explained how I was wrong in concluding that this piece of evidence was irrelevant. He just repeated his position at trial that, given he turned on the left indicator light, the plaintiff must have been aware of his intention to exit the Interchange in front of VB4521. I rejected this at trial, and he has not shown any basis that the Court of Appeal may intervene in this factual analysis.

23.  I do not think this ground is reasonably arguable.

Paragraph g: improper lane usage

24.  The defendant argues that TW8898 staying on the left 1^st lane within the Interchange without taking the first available exit amounted to a breach of the Road Users’ Code. This shows that the plaintiff was negligent and he caused the Accident.

25.  The plaintiff replies by submitting that no specific provision of the Road Users’ Code was cited by the defendant to support his proposition. Further, the evidence did not show that the left 1^st lane could only be used for exiting the Interchange.

26.  I agree with the plaintiff’s submissions. The defendant mentioned the part of the Road Users’ Code reminding drivers in a roundabout to look out for and show consideration of other vehicles crossing in front to leave by the next exit. This clearly implies that a vehicle may remain on an outer lane of a roundabout despite having no intention to take the next available exit; the defendant’s proposition is simply contradicted by the Code he seeks reliance on.

27.  The defendant has no reasonable prospect of success under this ground.

Paragraph h: overreliance on camera footage

28.  The defendant submits that I placed undue weight on the camera footages, ignoring the fact that reasonable drivers rely primarily on mirrors and direct observation, which provide a wider field of view than that of cameras.

29.  I agree with Ms Mok that I was entitled to assign suitable weight to what can be observed from the camera footages, bearing in mind that they provide an objective and contemporaneous record of the circumstances leading up to the Accident. Based on what I have said in the Judgment, I disagree with the defendant’s submissions that I solely relied on the camera footages to come to my factual findings.

30.  If all the defendant is saying is that the view of vision of a driver is wider than what the camera footages captured, it must be correct. But this alone does not assist the defendant – what flows from what the plaintiff actually saw or ought to have observed prior to the Accident is key. Based on my views in the previous paragraphs, the defendant has no reasonable prospect to successfully challenge my factual findings on appeal.

31.  I refuse to grant leave on this ground.

Paragraph i: unreasonable assessment of evidence

32.  The defendant argues that the objective evidence at trial was consistent with the defendant’s case that VB4521 was wholly ahead of the plaintiff’s vehicle. I understand this to mean, as the defendant sought to argue at trial, that before VB4521 cut into the left 1^st lane in front of TW8898, it was wholly ahead of TW8898 for some time, but not just for a split second before it started cutting into the left 1^st lane.

33.  In my decision, it is futile for the defendant to argue that, for a split second before the Accident, VB4521 was wholly ahead of TW8898. As a matter of physics, this is blindingly obvious; but this missed the correct issue, viz whether the defendant did leave sufficient time for the plaintiff to react to VG4521 cutting in front of TW8898 in close proximity.

34.  Ms Mok observes that, whilst this ground is included in the draft notice of appeal, the defendant has made no submissions to justify the reasonable prospect of success of this ground in his written submissions.

35.  I agree with Ms Mok that the defendant’s account is plainly incompatible with what one can observe from the camera footages. The defendant has not pinpointed any specific part(s) of the footages which can be said to be compatible with the defendant’s evidence on the relative positions of VB4521 and TW8898 inside the Interchange.

36.  I refuse to grant leave to appeal under this ground.

Paragraph j: errors in quantum assessment

37.  The defendant argues that my award of damages was excessive, and was not supported by the medical evidence.

38.  I find the defendant’s arguments fundamentally inadequate to show that he has any reasonable prospect of success in challenging my assessment on appeal. As Ms Mok points out, the defendant has stated in paragraph 17 of his 28 October 2025 submissions that I correctly arrived at HK$70,500.00 as the damages the plaintiff should be entitled to. Further, the defendant has not pointed out the specific ways in which I failed to proper scrutinize the medical evidence. It is trite that the leave to appeal ought not be granted on the basis of some broad-brush allegations of error.

Summary

39.  I am not persuaded that I erred in my Judgment. It does not appear to me that there is any reason in the interest of justice to grant leave to the defendant to appeal against my Judgment.

THE COSTS SUMMONS

40.  The defendant raises 2 arguments:-

40.1.  Since there was no order for a split trial, the summarily assessed costs of HK$5,000.00 should also cover the costs relating to liability.

40.2.  The plaintiff’s solicitors were the ones at fault with respect to the preparation and service of the trial bundle.

41.  I find no substance in the defendant’s submissions.

42.  First, it must be within the court’s unfettered discretion on costs to make a costs order on an issue-based approach, notwithstanding the absence of any order for split trial. The defendant’s logic is not understood; he has not pointed to any authority suggesting that the court cannot adopt such an approach to deal with costs.

43.  I have set out in the Judgment the reasons why I thought it was proper to order costs on an issue-based approach in the present case. The defendant has not attempted to suggest how I erred in my reasoning and assessment.

44.  Secondly, in the context of considering whether the costs order nisi should be varied, it is irrelevant that the defendant has sought to appeal against the Judgment. Again, the defendant’s logic is not understood.

45.  Thirdly, paragraphs 57 to 75 of the Judgment contained an extensive review of the correspondence and the arguments of the parties in relation to the agreement of the trial bundle index, the preparation of the trial bundle, and the service of the same. The defendant and his solicitors seek to rely on the Order of Master setting the present case down for a 4-day trial on the basis of the agreed trial bundle index to say that no fault should be laid on their doorsteps with regard to the trial bundle.

46.  I stand by the observations and conclusions I made in those paragraphs. I have explained in the Judgment why I found the defendant’s solicitors at fault despite the trial bundle being an agreed bundle, and the Master not taking issue with regard to the parties’ estimate of 4 days for the trial. I agree with Ms Mok that the defendant is now repeating the submissions he already made at trial. I see no basis to revisit the exercise of discretion.

47.  Fourthly, it is submitted that there was no time during the trial to adequately review the parties’ correspondence and make submissions as to the appropriate costs order. It was mentioned that the trial commenced on Christmas eve, so everyone should be on holiday mood; the defendant’s solicitors had to concentrate on the merits of the case during the trial, and thus there was not enough time to review the correspondence[6]. Therefore, it appears to be so suggested, that I did not give sufficient opportunity to the defendant and/or his solicitors to make representations before I made the wasted costs order.

48.  It is my decision that even in the written submissions filed by the defendant in support of the Costs Summons, the defendant’s solicitors are simply repeating the submissions already made at trial. I do not agree with those submissions in any event as they do not stand up to the course of correspondence I recounted in the Judgment. I hasten to add that, after completing the evidence on the first day of trial (24 December 2024), oral closing submissions took place on 31 December 2024. The 2 days in between (29 & 30 December 2024) originally reserved for the trial were vacated and parties were allowed to prepare written closing submissions before they returned for oral submissions. In my decision, it is preposterous to suggest that there was not enough time to review the parties’ correspondence for the purpose of making submissions on wasted costs as per my invitation at the commencement of the trial.

CONCLUSION

49.  I dismiss both the Appeal Summons and the Costs Summons with costs to the plaintiff, to be taxed if not agreed, together with a certificate for counsel.

50.  The costs order nisi in the Judgment is now made absolute.

51.  I thank Ms Mok for her assistance.