HU QINQIN trading under the name or style of 'FOOT PUNCTURE' (a firm) v. ACTION GAIN LTD

HCA 1522/2020

[2025] HKCFI 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1522 OF 2020

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D E C I S I O N

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A.  INTRODUCTION

1.  By a decision handed down on 28 January 2025 (“January Decision”), this Court dismissed the Plaintiff’s appeal against Master MK Liu’s decision refusing leave to the Plaintiff to adduce expert evidence.

2.  This is the Plaintiff’s application for leave to appeal against the January Decision. The intended grounds of appeal are as follows:

(1)  Upon my ruling that limbs (2) and (3) of damages sought by the Plaintiff justified, in principle, expert evidence on quantum, and that the Court considered that the Plaintiff did need, in principle, expert evidence to assist the trial judge in coming to a correct view on quantum (§§24 and 31 of the January Decision), this Court ought to have allowed the Plaintiff’s appeal and granted leave for her to adduce expert evidence on quantum of damages suffered or to be suffered (“Ground 1”);

(2)  This Court has made erroneous findings of the contents of the Draft Report as failing to satisfy the requirement of relevance (“Ground 2”);

(3)  This Court erred in holding that the Plaintiff should not be given a third chance to produce another expert report (§58 of the January Decision) (“Ground 3”); and

(4)  Holding that the Plaintiff was entitled to introduce expert evidence to prove her damages but at the same time refused her the application (inclusive of the possibility of putting forward a revised report) would be a denial of justice and her right to recover damages, especially when the Defendant would not suffer any prejudice (“Ground 4”).

B.  LEGAL PRINCIPLES ON LEAVE TO APPEAL

3.  The legal principles on leave to appeal are well-established. The applicant must satisfy the court that the intended appeal has (a) a reasonable prospect of success, or (b) there is ‘some other reason in the interests of justice’ for it to be heard. Under limb (a), prospects must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.

4.  Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It needs hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, §31, Kwan JA (as she then was).

5.  This is an application for leave to appeal against a case management decision concerning the assessment of expert evidence. The Court of Appeal will be circumspect in interfering with such a decision, unless the decision was not made in accordance with established principles or were otherwise plainly wrong: Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2019 2 HKC 175, §13.

C.  ANALYSES

C1.  Ground 1

6.  In ruling that the Plaintiff was justified, in principle, in adducing expert evidence on quantum, this Court was merely considering the Subject Matter Condition. The Plaintiff still had to meet the other 2 Conditions.

7.  Mr Chong submits that relevance is a term to denote the issues raised in the action but not the weight of the expert evidence to be introduced as the latter would be a matter for the trial judge. Relevance is the threshold to be considered to decide if (a) leave should be given to adduce expert evidence but not (b) if leave should be granted, the Plaintiff should be at liberty to engage Mr Tan as her expert. The practice of preparing a draft report is to assist the Court to consider issue (a) only.

8.  Without disrespect, the Court can take into account the probative value of an expert report in exercising case management power: Shenzhen Futaihong, §§6-7. That was what this Court did in this case. As the Draft Report had no probative value, it was not likely to be of real assistance to the determination of the issues. Leave to adduce expert evidence should not be granted under item (a). Item (b) is not engaged at all. Ground 1 has no merit.

C2.  Ground 2

9.  This Court has assessed the Draft Report as it was without competing evidence from the Defendant. If the expert evidence was fundamentally flawed, a trial judge should not be troubled with hearing cross-examination on it. Ground 2 has no merit.

C3.  Ground 3

10.  Mr Chong himself admits in his submission that there were 2 Draft Reports. It is not clear how it could be said that the Defendant has made an erroneous or misleading submission to there being 2 Reports.

11.  The expert evidence summons was specially adjourned by the learned Master to be heard after witness statements and the Draft Report were prepared, to enable the Court to have the full picture. I see no reason why the Plaintiff should try out his luck on the Draft Report and, when that failed, to be given another chance to appoint the same expert to do another one again. Ground 3 has no merit.

C4.  Ground 4

12.  The burden was on the Plaintiff to justify the need to introduce expert evidence. Refusing her leave to do so was after considering the very Draft Report that she intended to adduce at the trial. It is far-fetched to say that there was a denial of justice when her own evidence was not up to standard. Ground 4 has no merit.

D.  CONCLUSION

13.  None of the grounds of appeal have a reasonable prospect of success. There is no other reason in the interests of justice for an appeal to be heard. The application for leave to appeal is dismissed.

14.  There is no reason why costs should not follow the event. On a nisi basis, I order that costs of the application be to the Defendant, summarily assessed at HK$50,000.

15.  I thank counsel for their assistance.