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

CACV 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.86 of 2008

(On Appeal from HCPI No. 938 of 2004)

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JUDGMENT

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Hon. Yuen JA:

1.  The Plaintiff applied by summons issued on 17 April 2009 for discovery of documents, viz. travel records of Luk Wan Fung for the period between 27 July 2001 and 7 December 2001.  Mr Luk was a witness for the Defendant at the trial of HCPI 938/2004.  In a judgment given on 20 February 2008, Yam J dismissed the action.  The Plaintiff lodged an appeal on 3 April 2008.  She has made this application for discovery with a view to requesting the Court of Appeal to accept the travel records as fresh evidence on appeal.

Background

2.  The Plaintiff claimed that on 29 October 2001, she was trying to retrieve some cardboard sheets stored underneath her desk in her office when a cardboard box fell injuring her eye.  The Defendant was her employer.  The Plaintiff sued the Defendant for damages in common law, the causes of action being negligence, occupier’s liability, etc.  The Defendant denied liability.

Trial before Deputy Judge Wright

3.  The trial was first heard before Deputy Judge Wright (now Wright J) in March 2006.  The Plaintiff was then legally represented. 

4.  The Defendant called Mr Luk as one of its witnesses.  The Defendant only had 2 employees working from the office.  At the time of the accident, Mr Luk was Senior Engineering Manager and the Plaintiff was employed to assist him in office administration, general office work, etc. 

5.  By the time of the trial before Deputy Judge Wright, Mr Luk was no longer in the Defendant’s employ and had become a consultant engineer.  Mr Luk gave evidence for the Defendant to the effect that (contrary to the Plaintiff’s allegation) he had not instructed her to place the boxes under her desk, and that it was the Plaintiff herself who was responsible for office administration including keeping the premises clean and safe. 

6.  Deputy Judge Wright dismissed the Plaintiff’s action. 

CACV 144/2006

7.  The Plaintiff appealed Deputy Judge Wright’s judgment.  In the taxation of costs process it was revealed that the Defendant had paid some sums of money to Mr Luk including a sum of $10,000 about 3 weeks after the judgment and the Plaintiff argued that this was relevant to his credibility.

8.  This court (Cheung JA and Waung and Fung JJ) admitted the evidence of payment as it satisfied the conditions required for the admission of fresh evidence on appeal (para. 10).  The court held that Mr Luk’s payment was a matter that the trial judge should have been made aware of before he made findings on the credibility of witnesses (para. 10).  The appeal was allowed without going into the merits and a re-trial was ordered (para. 11).

Re-trial before Yam J

9.  The re-trial was heard before Yam J in February 2008.  Mr Luk was again called as a witness by the Defendant.  Yam J rejected the Plaintiff’s evidence.  He accepted Mr Luk’s evidence “in spite of the fact that he required compensation from the defence” (para. 21).  The judge found that the compensation was reasonable since Mr Luk was required to spend time away from his consultancy.  The judge said “I do not find that he came to this court to lie just because he received remuneration” (para. 21).

10.  The judge found that even if the accident happened as the Plaintiff alleged, the Defendant was not liable as it was the Plaintiff who was in charge of running the administrative side of the office including making it clean and safe.  The judge said “according to Mr Luk, he had to go to the Mainland in order to discharge his duties.  That would be about one-third of his time a year” (para. 8).

11.  Yam J dismissed the Plaintiff’s action.

CACV 86/2008

12.  The Plaintiff’s appeal from Yam J’s judgment (CACV 86/2008) is due to be heard next month.

Summons

13.  On 17 April 2009 the Plaintiff issued a summons for discovery of Mr Luk’s travel documents between 27 July 2001 and 7 December 2001.  The affirmation made in support of the summons says that this was the period of the Plaintiff’s employment and alleges that Mr Luk had not spent one-third of the time in the Mainland working for the Defendant as he had testified before Yam J.

14.  The summons is opposed by the Defendant.

Discussion

15.  It is clear that the summons should be dismissed.  It is an application made after judgment for discovery of documents which the appellant hopes to adduce as fresh evidence on appeal.  However it is clear from the principles governing the admission of fresh evidence on appeal (Ladd v Marshall [1954] 1 WLR 1489) that even if the Plaintiff had those documents already, they would not be admitted as fresh evidence on appeal.  Accordingly for this reason alone, the summons for discovery is futile.  

16.  The principles governing the admission of fresh evidence on appeal are well-established.  Whilst the Court of Appeal has power to allow fresh evidence to be adduced on appeal in the exercise of its discretion, this is not often or lightly done.  Where there has been a hearing on the merits, fresh evidence will generally not be admitted on appeal unless the three conditions set out in Ladd v Marshall are satisfied:

(1)  it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(2)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(3)  the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible.

However, if the evidence relates to matters which have occurred only after the hearing, the court has a discretion to admit such evidence, although the power is used sparingly with due regard to the need for finality in litigation (Hong Kong Civil Procedure 2009, §59/10/10).

17.  Mr Luk’s travel documents could have been obtained with reasonable diligence before or during the trial before Yam J.  The Plaintiff says that Mr Luk’s witness statement did not contain the specific allegation that he spent one third of the year in the Mainland and that this came out only during the trial before Yam J.  But there was nothing to stop the Plaintiff asking Mr Luk to produce his travel records there and then, as the Plaintiff asserts that the time that Mr Luk spent in the Mainland was a matter of controversy between the parties.  If Mr Luk were to be unwilling or unable to produce his travel records, the Plaintiff could have asked for an adjournment of the trial for those records to be sought by way of discovery.  The Plaintiff did not do so, and thereby failed to exercise reasonable diligence to obtain the evidence for use at the trial.  The first condition of Ladd v Marshall is not satisfied. 

18.  As those documents (even if the Plaintiff had them already) would not be admitted as fresh evidence at the appeal, the application for their discovery for that purpose is futile.  The summons is dismissed.

19.  As for costs I see no reason to depart from the usual rule that costs should be awarded to the successful party in the application.  Accordingly the Plaintiff is to pay the costs of the application to the Defendant, to be taxed if not agreed.