MOHAMMAD AYAZ v. TAM KAM WING AND ANOTHER

DCPI 1583/2022

[2024] HKDC 912

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1583 OF 2022

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JUDGMENT

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Introduction

1.  This is the worst case of “symptom exaggeration” I have ever seen in my life.  The plaintiff (“P”), Mr Ayaz Mohammad, giving live oral evidence before me on 17 & 18 April 2024, was shown to be so thoroughly dishonest I considered referring him to the Secretary for Justice so that he could be promptly and properly prosecuted for perjury under Section 31 of the Crimes Ordinance (Cap 200).  P’s dishonesty, unreliability as a factual witness, and financial greed, were all shocking.

2.  Given the seriousness of what I say, it is only fair that I point out Mr Kamlesh Sadhwani, counsel for P on 17 & 18 April 2024, is in my view blameless over this.  I checked the original Notice of Re-Assignment of Counsel issued by the Director of Legal Aid on 9 April 2024, which said Mr Sadhwani was a last minute replacement.  I am satisfied Mr Sadhwani performed and discharged his duties the best he could in the circumstances, in ways that could only be described as praiseworthy.  The criticism in this judgment is directed at P and no one else.

Background Facts

3.  P was a driver.  He was born in 1995.  He had a traffic accident on 9 August 2019.  The Defendants (“Ds”) admitted liability.  This matter came before me on 17 & 18 April 2024 for assessment of damages.

4.  P submitted he should be paid HK$3,344,073.62 plus interests and costs. Ds submitted the total amount of damages payable should never exceed HK$196,000.

5.  Two agreed bundles were placed before me.  P gave live oral evidence via an Urdu interpreter, and was skillfully cross-examined by Mr Gary Chung (assisted by Mr Jethro Pak), counsel for Ds.

The Law

6.  The law on the assessment of evidence is so settled some may say it is, like the case of Donoghue v Stevenson [1932] AC 562, something which no longer needs to be explicitly stated.  However, given my intended criticism of P’s evidence, it is only fair that I demonstrate, here and now, that I have duly considered the cases cited to me by Mr Kamlesh Sadhwani, counsel for P.  I shall proceed to do so.

7.  In both his oral opening[1] and written closing[2], Mr Sadhwani, counsel for P, emphasized the importance of assessing the credibility of P.  I agreed, especially since P’s main complaint was the alleged existence of some subjective pain.  Mr Sadhwani referred to two cases, namely (1) Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (at §§36 to 38, per Bokhary PJ); and (2) EPI Inc v Symphony plc [2005] 1 WLR 3456 (at §§74 & 75, per Peter Smith J), and urged me to consider both.  I confirm I have indeed considered both authorities.

8.  In Ting Kwok Keung, Bokhary PJ said the following: -

“… I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence. It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve. In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour…”

9.  The above was applied in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514 (at §63, per DDJ Kenneth KY Lam).

10.  In EPI Inc, Peter Smith J said the following: -

“…I add a few of my own precautions. (i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness's evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie. (iii) Third, I regard it as essential that witnesses are challenged with the other side's case. This involves putting the case positively. This is important for a judge to enable him to assess that witness's response to the other case orally, by reference to his or her demeanour and in the overall context of the litigation. A failure to put a point should usually disentitle the point to be taken against a witness in a closing speech. This is especially so in an era of pre-prepared witness statements. A judge does not see live in-chief evidence, thereby depriving the witness of presenting himself positively in his case. None of the above or the helpful assistance provided by the reported authorities is necessarily determinative. All of them provide factors to enable a judge to come to a particular conclusion about the acceptance or rejection of a particular person's evidence.”

11.  The above was applied in Lam Rogerio Sou Fung v Tan Soon Gin George (HCA2576/2005, 5 May 2011) (at §41, per Chu J).

12.  I have indeed considered the entirety of P’s evidence.  I am of the firm view that P’s various lies were not one-offs, or just stupid attempts to bolster his case.  P’s various lies, in this particular case, actually showed he was dishonest through-and-through, and knowingly running a false case out of greed, as a result of which I should reject the entirety of P’s evidence as unreliable, except those parts which were admissions or had been proved by independent documentary evidence.

13.  In my view, the best way to see how P’s dishonesty permeated through his entire case on quantum is to follow the sequence of topics being covered by Mr Chung’s cross-examination of P, to which I now turn.

P’s Oral Evidence – Walking Frame?

14.  By P’s Revised Statement of Damages filed on 14 December 2022 (“the RSoD”), which was verified by P’s Statement of Truth dated 7 December 2022 (“the SoT”), P alleged that immediately after the accident in question, he was conveyed by an ambulance to United Christian Hospital (“UCH”) and eventually “discharged on 13 August 2019 with prescription of medicines, a sick leave certificate and a walking frame”[3]. By §3 of Ds’ Answer to the RSoD, Ds put P to strict proof of all allegations in the RSoD, including the allegation vis-à-vis the aforesaid “walking frame”.

15.  I noticed from my pre-trial perusal of case papers that P never attempted to adduce any documentary, photographic or physical evidence of the alleged walking frame.  P’s witness statement filed on 28 December 2022 (“P’s WS”) actually referred to “elbow crutches”[4] instead, but there was no attempt on the part of P to adduce any documentary, photographic or physical evidence of the alleged elbow crutches either.  Given that P had always been legally represented, this was very obviously highly suspicious, to say the least.

16.  As any lawyer worth his salt could have predicted, Mr Chung, being experienced, started his cross-examination of P by asking P to review the RSoD, and asking P whether P knew why he was allegedly “prescribed with a walking frame” on discharge.  P’s answer under oath was: -

“I was having problem in walking, that’s why it was given to me.”[5]

17.  P’s answer was a lie.

18.  Firstly, P had no problem walking. UCH provided us with its independent and contemporaneous record of P’s progress as a patient there and P was recorded as walking “unaided” on admission, with no weakness or numbness in any of his limbs.  P’s limb power was full[6]. That remained the case on 10 August 2019[7].

19.  Furthermore, on 11 August 2019, P was able to “walk to toilet independently”[8]. On 12 August 2019, P was walking “unaided”[9].

20.  Unless there was a massive conspiracy amongst all nurses and doctors within UCH to deceive me for no reason (there was no evidence of that whatsoever), it is a certainty P had no problem walking whatsoever.

21.  Secondly, UCH never prescribed P with any walking frame or elbow crutches on discharge.  P was just given a neck collar and some pain killers, and nothing else[10]. Contemporaneous records do not lie.

22.  When confronted with contemporaneous records showing the absence of any walking frame or elbow crutches prescription, P resorted to saying this in his attempt to convince me he had a walking frame: -

“… then maybe I got it by myself by sending one of my family member to hospital, but I got it from hospital.”[11]

23.  I reject that explanation as false.  That was never P’s pleaded case in the RSoD, or his evidence under examination in chief.  Importantly, if that were true, P could have adduced evidence in the form of a receipt, a photograph of the alleged walking frame, or indeed by bringing the alleged walking frame to court. Even if the alleged walking frame existed but had somehow gone missing, P could have said exactly that in P’s WS.  P never did any of such things despite being legally represented throughout.  In my view, the truth is more likely to be that this whole allegation of P having a walking problem, and thus a walking frame, was just a lie.  I find this to be the case, on balance of probabilities.

24.  Mr Sadhwani, counsel for P, in an attempt to put the best spin on the evidence, emphasized the consistency of P’s oral evidence that there was a walking frame for his walking problems.  With respect, I cannot see how that could assist.  As I had previously stated in Fan Kwan Tai v Well Tech Engineering & Construction Company Limited [2019] HKDC 847 at §11(2), “telling a lie a thousand times does not turn a lie into truth”.

25.  Similarly, Mr Sadhwani emphasized an item could exist even if there was no objective evidence of it over or above P’s oral assertions on oath.  That may well be true, but my duty is not to list out possibilities.  My duty is to decide which proposition is more likely.  Looking at P’s assertion on oath and cross-checking it with other pieces of evidence (such as UCH’s contemporaneous progress notes), it is substantially more likely that P lied about this in an attempt to exaggerate his injuries and get more damages[12].

26.  For the reasons set out above, I reject P’s case that he needed, or had, a walking frame.

P’s Oral Evidence – Limb Weakness?

27.  Mr Chung’s second topic of cross-examination related to what was recorded as having been said by P to two doctors, namely, Dr Lam and Dr Law, on 11 July 2022.  These two doctors were medical experts engaged by the parties, who produced a joint expert report (“JER”), §47[13] of which, under “present complaints”, read as follows: -

“Persistent left sided weakness, including upper limb and lower limb.”

28.  I noticed from my pre-trial perusal of case papers that this was shady, as the independent contemporaneous note released by UCH clearly recorded P as having no weakness in any of his limbs on 9 August 2019[14], and the authenticity of the note was agreed.

29.  Mr Chung, in his cross-examination of P, meticulously took P through all material medical notes, including a consultation note dated 31 August 2021 released by a completely different hospital, namely, Princess Margaret Hospital[15], and a consultation note dated 20 July 2020[16] released by UCH, all recording P as having no weakness in his limbs.  P was given a full opportunity to explain.  P’s oral explanation under oath was: -

“I feel the weakness sometimes. It is not persistent. Sometimes I feel the weakness and sometimes I don’t.”[17]

30.  This explanation was immediately picked up by Mr Chung as being inconsistent with §47 of the JER which recorded P’s use of the word “persistent”, directly contrary to P’s new allegation of “not persistent”.

31.  Looking at P’s allegation of limb weakness as recorded in the JER and cross-checking it with other pieces of evidence (contemporaneous notes released by two separate hospitals), it is substantially more probable that P had simply lied, and that P’s limbs were in fact perfectly fine[18].

32.  For the reasons set out above, I reject P’s case that he had limb weakness, of any degree, at any time.

P’s Oral Evidence – Pain Intensity?

33.  Mr Chung’s third topic of cross-examination was on P’s rating of pain intensity, as recorded in §45[19] of the JER.  According to the JER, P rated his own pain intensity as 9/10 in 2019 (immediately after the accident in question), and 8/10 in 2022 (at the time of the joint examination).  This was specifically challenged by Mr Chung as incredible because in UCH’s independent and contemporaneous medical notes, P’s pain was recorded as “mild”[20], while in Princess Margaret Hospital’s occupational therapy work rehabilitation assessment, P’s pain was recorded as a mere score of 7/10[21].  P was given a full and fair opportunity to explain.  P’s oral explanation on oath on the discrepancy vis-à-vis his pain level was: -

“It was up and down, sometimes less, sometimes more.”[22]

34.  I accept, from my general life experience, that a person’s pain intensity may fluctuate depending on what he or she was or had been doing prior to the point of assessment.  However, it is difficult to see how P could have described his pain as “mild” to his doctors back in August 2019, only to also honestly “reclassify” the exact same pain as being at a score of 9/10 when asked about it again on 11 July 2022[23]. Mr Sadhwani submitted this was an innocent discrepancy, and was neither a conscious exaggeration nor an unconscious exaggeration[24].  Mr Chung submitted (and Mr Chung had also put this to P) what happened was that P had exaggerated his symptoms to me and to the experts[25].

35.  Having considered the entirety of P’s oral evidence, including P’s demeanour in the witness box (which I observed with due care), it is in my view more probable than not that P’s complaint of high pain intensity was a conscious exaggeration, and cannot be relied upon by me.

36.  I should add that in so holding, I have not lost sight of the fact that Mr Sadhwani, on behalf of P, took a pleading point at §20 of his written closing, and drew my attention to the fact that Ds’ Answer[26] did not plead any positive case of exaggeration.  Reference had been made to what DHCJ To had said in Liu Chun Kow Joe v Lee Sau Wing (HCPI399/2001, 15 July 2005, §10).  I was independently aware of what was stated in Order 18 rule 12(1)(c) of the Rules of the District Court (Cap 336H), and what was stated in those material authorities on the rule, including what the Court of Appeal had stated in Wang Ruiyun v Gem Global Yield Fund Ltd [2011] 3 HKLRD 785 at 800 (§30, per Cheung JA).  Whilst I would agree it might have been better if Ds had spelt out their intention to run a case of pain exaggeration in their Answer, at the end of the day the burden was on P to prove his own allegation of pain, not for Ds to prove the absence of pain.  With the burden of proving his own allegation of pain being on P, I allowed Ds to run a case of pain exaggeration without having first pleaded the word “exaggeration” in their Answer.

37.  Putting it differently, this is not a case of Ds counterclaiming damages from P in reliance on the tort of deceit, or a case of Ds attempting to adduce their own scientific evidence to prove the absence of a high level of pain.  This is simply a case of Ds not accepting P’s case that P suffered a high level of pain as a result of the accident on 9 August 2019.  In such a scenario, for as long as Ds had made it clear in the Answer they would put P to strict proof of all allegations of pain and suffering, Ds were entitled to test the oral evidence of P in the exact manner as they did, without having first pleaded the word “exaggeration” in any part of their Answer.  What happened was that P failed to establish he suffered a high intensity of pain, instead of Ds having established a positive case of exaggeration.  Even if I had disallowed the cross-examination (there was in fact no objection to the cross-examination on this topic), I would still have rejected P’s case, as P’s own documents had internal inconsistencies which should have been clear to P himself, and/or to P’s legal team.

38.  For the reasons set out above, I reject P’s case that he suffered pain the intensity of which was 9/10 in 2019, or 8/10 in 2022.  My factual finding is that P only suffered “mild”[27] pain, exactly as recorded in UCH’s independent and contemporaneous medical notes.

P’s Oral Evidence – Sex Drive Significantly Dropped?

39.  Mr Chung’s fourth topic of cross-examination was in relation to P’s allegation of erectile dysfunction and a drop in sex drive, as pleaded in §§5 to 7 of the RSoD in these terms: -

“P’s urge to have sex has decreased, and when he does have sex, he suffers from discomfort whilst performing the same, making his sexual experience not as enjoyable as before. On some occasions, causing his erection to become limp. P’s family members have also been requesting him to give birth to another child. However, as a result of the infrequent sex and limp erections, he has not been able to give birth to another child after the accident. As a result of the above, there are frequent quarrels between [P] and his wife on petty matters as P is in a bad mood most of the time. The same makes him feel insecure about his sexual abilities. Overall, the above has also [caused] substantial damage to [P’s] social life and his family atmosphere.”[28]

40.  I did notice from my pre-trial perusal of case papers that P did not appear to have ever mentioned any of these to any of his many doctors, or sought professional help on this at any point, which made P’s allegation dubious.  I predicted Mr Chung would cross-examine P on this.  Mr Chung did.  It went as follows: -

“Q. Can you answer my question, Mr Mohammad. I’m asking the question when you encountered problem of sex, you wish it to be cured, am I right?

A. Yes.

Q. So the only way for it to be cured is to tell the doctor, you agree or not agree?

A. Yes.

Q. So without telling the doctors about this problem, there won’t be any treatment being given in this regard, let alone cure, do you agree or not agree?

A. Yes.

Q. So I’m...(indistinct), on one hand, you wish to be cured in this regard, but on the other, well, at least from the medical evidence, there seems to be no reference of you ever complaining about this problem.  Can you explain how you reconcile this?

A. I should tell the doctor.

Q. Yes, but I’m asking -- you should have told the doctor, but on the other hand, you said you shy, you didn’t tell them, right?

A. Yes.

Q. So this is contradictory to your own hope to have the problem cured. 

A. (Witness answers in English) Yes.”[29]

41.  With counsel’s consent, I asked clarification questions, in this manner: -

“COURT: You wanted the sex life to be better, yes?

A. (Interpreted evidence continues) Yes.

COURT:  But you did not tell the doctor, correct?

A. Yes.

COURT:  Do you have an explanation for this, yes or no?  If so, please tell us the explanation now. 

A. Same as before, I felt shy.”[30]

42.  Mr Chung then, on behalf of Ds, specifically put to P that P’s sex life complaint was false.  P disagreed[31].

43.  In my view, P’s sex life complaint must be false, and I so find on balance of probabilities.

44.  Firstly, I considered the entirety of P’s evidence, including P’s demeanour while talking about sex in court (which I observed with proper care).  P was not shy at all.  Indeed, when P was talking about sex in court, the public gallery was full of random strangers, pupils and mini-pupils, and P did not show shyness talking about sex publicly, in front of such a crowd.  There was no request from P or any member of his legal team for the public gallery to be cleared.  That being the case, it must be highly improbable, if not literally impossible, for P to have felt shy when he was just conversing with his own doctors in the privacy of a hospital or clinic setting.

45.  Secondly, whilst Mr Sadhwani, counsel for P, in an attempt to put the best spin on the evidence, emphasized in §30 of his written closing that P was a devout Muslim, that did not assist.  P was given a full and fair opportunity to explain why he never sought help about his alleged sex life problem, and religion never came up.  P did not say, in his sworn evidence, that it was some religious, morality or social rules which stopped him from seeking help on his sex life, or from talking about his sex life.  P’s answer was an allegation of shyness which I have, by first-hand observation, found to be entirely false.  Accordingly, Mr Sadhwani’s submission on this, being unsupported by P’s sworn oral evidence under cross-examination, must be rejected by me.

46.  For the reasons set out above, I reject P’s assertion that he had erectile dysfunction, a drop in sex drive, or any other problem with his sex life.

P’s Oral Evidence – Resuming Driving Job?

47.  Mr Chung then cross-examined P on a number of other topics before moving on to the topic of returning to pre-accident occupation (i.e., becoming a driver again).  This was necessary as P claimed “future loss of earnings” in §21 of the RSoD in these words: -

“But for the Accident, P would have been working as a delivery worker cum driver until he reaches the normal retirement age of 65. As a result of the Accident and residual disabilities, P is unable to return working as his pre accident occupation. He has to switch to less strenuous jobs requiring less physical demand and with less dangerous environment.”[32]

48.  P said “unable”, not “unwilling”.

49.  The cross-examination on this topic went as follows: -

“Q. Now, can you turn to page 64 of bundle A, the other bundle.  Now, this is the occupational therapist report again from the same occupational therapist, Kelly Lee, dated 25 August 2021.  That’s at the top left corner of the report.  Now, I wish you to look at paragraph 4, starting from the line -- third line from the bottom of that paragraph starting with the words “job later”.  It starts like this, “His condition was reported to O&T” -- that’s orthopaedics and traumatology -- “on 8 December 2020, he declined comprehensive driving assessment at community rehabilitation service support centre”.  That’s the CRSSI abbreviations we have just seen in the other page.  Why did you decline the referral for driving assessment?

A. Because I was planning to do another kind of job.  I want to work in less dangerous environment. 

Q. Notwithstanding doctor’s advice.

A. Because I wanted to change the nature of job.  I did not want to continue as a driver.

Q. So regardless of what would happen or what would be the outcome of such a driving assessment, one way or the other you determined to change for another job because driving was too dangerous.

A. You mean why did I decline or what?  I don’t understand.

Q. I’ll repeat myself again.  You said you turn down the advice of driving assessment because you have decided to change job. 

A. Yes.

Q. You wanted to change to a job less dangerous.

A. Yes.

Q. So am I right to say that even if you attended driving assessment, regardless whatever outcome of that assessment, you decided not to take up a job involving driving again, is it am I right?

A. Yes.

Q. So the change of job, would you agree with me, that it is a matter of your own choice then?

A. Yes.

Q. But without the driving assessment, would you agree that the occupational therapist would not have a full picture of what you could do and could not do, do you agree with that?

A. I don’t know about that.

Q. Now, I suggest to you that, in fact, you could return to your pre-accident job, that’s right?

A. Yes.”[33]

50.  From the above, it was clear to me that P’s previous reference to himself being “unable” to return to his driving job was merely a lie – P was just “unwilling” (and not “unable”) to do so because he had a personal preference in favour of other jobs.

51.  With counsel’s consent, I asked clarification questions, in this manner: -

“COURT: Witness, I’m quite interested in your last few answers. You said essentially that you would not want to drive again because it’s dangerous.

A. Yes.

COURT: That I understand, because you had an accident. 

A. Yes.

COURT: How about money.  Irrespective of pay.  If someone offers you HK$1 million a month just to drive him around Hong Kong in a super-safe limousine or just to drive a single route, bring one child to school and back, you will still say no?

A. Yes, I will not do.

COURT: Irrespective of how much you get paid.

A. No, first, I will look for my health and then I will think about in that regard.

COURT:  After 9 August 2019 when you had the accident, have you ever driven any car anywhere?

A. Yes.

COURT: Then you’re not afraid of driving.

A. I got the fear when I started working in Hercules at that time.

COURT:  Right.  But you managed to drive for Hercules, it was not a problem.  It’s not like you got on the car and then you froze because of some psychiatric issue.  You drove for them and it worked, correct? 

A. Yes, I did work, but after some time I felt that this is not suitable for me.

COURT: Are there other reasons why you declined the driving assessment?

A. No.”[34]

52.  Upon hearing the phrase “I got the fear”, Mr Chung, counsel for Ds, asked follow-up questions, which went as follows: -

“Q. Now, you mentioned about you have -- you start to have fear of driving when you worked for Hercules Logistics.

A. Yes.

Q. This fear of driving, under quotation, was not mentioned anywhere, either in legal documents, your own documents or medical documents.  It was never mentioned before, do you agree with that?

A. Maybe there is no.

Q. And neither did you tell the doctor who referred you to driving assessment that you have fear of driving and that was the reason you decline the assessment.  You didn’t tell the treating doctor such, am I right?

A. Did not tell.

Q. Sorry?

A. I did not tell.

Q. All right.  So the first reference of this, under quotation, “fear of driving”, was first mentioned just literally a couple of minutes ago, notwithstanding this accident had been -- had taken place four and a half years ago.  I’ve not finished my question.  Wait.  Now, let’s start counting from the time when you work for Hercules.  It has been four years since then until you reach trial now.  Is there any reason for you not to tell anyone about this, under quotation, “fear of driving”, for all these four years until now you’re in the witness box approaching the end of cross-examination.

A. Because I decided not to go into a dangerous environment, I decided to go into a less dangerous environment as I heard that if I started again driving and I need to sit and I will work in that environment again and by the will of God, who knows if I got accident and I got injured again.  So I had a fear because of that.

Q. You’re not answering to my question, Mr Mohammad, again.  Let me be more simple.  You have not mention to anyone, literally anyone, in any document about this, under quotation, “fear of driving” for four years at least.  Not even to your lawyers.

A. Yes, I did not.

Q. So I suggest to you that this is only a fabrication in the witness box in response to the court’s question. 

A. I did not fabricate it.  I did not want me to get involve into that scenario of accident again.

Q. So that is the only reason why you didn’t tell the doctors -- tell the lawyers about your fear, is that the only reason?

A. Never ask, so how could I tell?

Q. I’ll leave it to closing.”[35]

53.  P’s assertion that he basically could not reveal his alleged fear of driving because it was never asked of him seemed to me to be absurd to the extreme, especially since there was a full paragraph in P’s WS in which P talked at length about his alleged inability to ride a motorcycle by reason of some alleged physical pain (as opposed to emotional, psychological or psychiatric fear) so that if P had some genuine fear of driving as a result of the accident, one would have thought P would have mentioned it there[36].

54.  With counsel’s consent, I asked clarification questions, in this manner: -

“COURT: Can you please turn to bundle A, page 46. You’re looking at your own witness statement. Can you focus on paragraph 11. Interpreter, please read out the entire paragraph to the witness in the language he spoke. [Interpretation done] So as you can see here, you did mention you were unable to ride a motorcycle, but the reason you gave was physical pain at your neck. At no point did you say the reason was fear. Why?

A. That’s what I’m telling, I had a fear not to get accident again.  That work I had the fear of an -- getting accident again.

COURT:  Yes, that I understand, but why not mention it here? 

A. At that time it was asked that what problem were I facing while riding.  That’s what I told.  Maybe at that time it was ask like this, the work problems I am facing while riding. 

COURT:  Right.  Related question.  Have you ever asked to see a psychiatrist or psychologist about the fear?

A. No.

COURT:  Why not?

A. I did not tell anybody about it.

COURT:  Right.  So if counsel says to me in closing submission that it’s actually because the whole idea of fear of driving was fabricated by you just now, what would you like to say in reply?

A. I told according to the fact that I did not get in accident again.  I was telling according to that point of view.  What I am telling that I had a fear of not getting an accident again.

COURT:  Right.  Is that all you will say in reply to any such submissions from the counsel?

A. Yes.

COURT:  Thank you.”[37]

55.  From the above, it was clear to me that P’s reference to “fear of driving” was nothing more than a most dishonest fabrication.  There was no truth in it whatsoever.  P had no fear of driving.  He made that up.

56.  I should add that whilst P was giving oral evidence, he agreed his driving licence allowed him to drive vehicles with auto-gear, and when driving vehicles with auto-gear he did not need his left leg[38].

57.  For the reasons set out above, I reject P’s assertion that he was “unable” to return to his pre-accident occupation.  It is my factual finding that P can resume his job as a driver.  P’s future loss of earnings is zero.

P’s Oral Evidence – Kneeling Problems?

58.  Mr Chung then cross-examined P on a number of other topics before moving on to the topic of P’s alleged kneeling problems.  This arose because at the beginning of P’s examination-in-chief, Mr Sadhwani asked P a number of supplemental questions, all of which allowed by me because there was no objection.  One set of questions and answers went as follows (so far as material): -

“Q. This is your daily activities, is that right? So perhaps can I make myself clear. So we’re not talking about your job duty, just the daily activities as you go about -- well, you’re not working. For example, you’re a Muslim, does the injuries affect you being a Muslim in any way?

A. Yes, as I need to pray, so now I pray while sitting.  I cannot stand while praying -- I cannot stand to perform my prayer.  I can stand and pray, but I start feeling discomfort and I feel difficulty while praying, so then I sit and pray.

Q. Sorry, I’m a bit confused here.  As a Muslim, do you stand and pray or do you have to kneel down?

A. Yes, I need to kneel down as well.

Q. Yes.  So when you kneel down and pray, do you have a problem or not?

A. Yes.

Q. Yes.  And what sort of problem is this?

A. Yes, when I kneel down I feel difficulty and when I come up it makes me difficult as well.  I cannot move myself back to the standing position.

Q. How many times a day do you pray?

A. Five times.

Q. So because you have difficulty doing this, have you altered your praying position or do you just continue with the pain?

A. I changed it and now after that I used to sit on the chair to pray.

Q. So do you still sit in the chair?  So you used to sit.  Do you still sit when praying or not?

A. Sometimes.”[39]

59.  The above was completely unpleaded in the RSoD, and never mentioned by P in P’s WS.  Naturally, Mr Chung cross-examined P on this, including as to the timing of this being raised.

60.  With counsel’s consent, I interrupted Mr Chung mid-way and asked clarification questions, in this manner: -

“COURT: Perhaps we can do it like this. You are a Muslim, ie you have the Islamic faith, correct? On a scale of zero to 10, zero being not important, 10 being extremely important, how important is your religion to you as a person?

A. 10.

COURT: 10, that’s extremely important.

A. Yes.

COURT: If that’s the case, why is it that in your witness statement you never mentioned anything about religion?

A. It was not asked ever, so that’s why I did not tell.

COURT: Well, but you knew you would have to say things like hiking, sex, motorcycle and these are presumably things that are less important than religion to you.  Why did you still not mention religion anywhere in the witness statement?

A. Because I used to pray while sitting, so that’s why maybe I did not tell at that time.

COURT: Or would it be because -- I’m just guessing -- that the accident had no effect on your religion or the importance of religion or the practice of religion, hence not mentioning it anywhere in the witness statement?

A. I was facing difficulties, but we can pray while sitting as well.  So I used to pray at that time while sitting.  So maybe that’s why I did not tell at that time.

COURT: Okay.  I understand now.  Thank you.”[40]

61.  Mr Chung followed-up on this and specifically put to P that P “never had a problem with kneeling”, a proposition made on behalf of Ds which P disagreed with[41].

62.  From the fact that P had never previously mentioned kneeling or praying problems despite the practice of the Islamic faith being allegedly extremely important to P, it was clear to me that this whole recent assertion of kneeling or praying problem was yet another dishonest fabrication of P. There was no truth in it whatsoever.  P had no kneeling or praying problem.  He made that up.

63.  For the reasons set out above, I reject P’s assertion that he had kneeling or praying problems, or that the accident had affected his practice of the Islamic faith in any way or form.

P’s Oral Evidence – Summary

64.  As should be apparent from the above, I was unimpressed by P’s evidence, and for good reasons.  It is clear that P simply suffered minor injuries.  In gist, the accident had only caused P to suffer a simple neck and back sprain involving soft tissue injuries.  All he ever had to do was to wear a neck collar for a few days and pop some Panadol tablets and/or Tramadol capsules.  That was it.  P could have just carried on with his life thereafter. It was remarkably dishonest and greedy, or absurd and unrealistic, for P to come to this court to ask for damages in the sum of HK$3,344,073.62 plus interests and costs.  Nevertheless, Ds had in fact agreed P should be entitled to some damages, though obviously of a much smaller total amount.  I shall now proceed to quantify such damages.

PSLA

65.  I have considered all comparables helpfully cited to me by Mr Sadhwani and Mr Chung.  In relation to those, I need to emphasize that Mr Sadhwani’s comparables were with respect less helpful to me because they were all, perhaps understandably, selected on the unilateral assumption that I would accept P’s assertions.  Through no fault of Mr Sadhwani, I rejected P’s assertions for the reasons set out by me above.  Looking at my previous decision in Fang Zhaohua v Kam Fung Engineering Limited [2023] HKDC 971 and all the independent research on quantum which I had done for that matter, I was tempted to award no more than HK$30,000 for P’s damages for pain, suffering and loss of amenities (“PSLA”). However, having read and considered all that was said in, for example, Lai Ka Yin v Chan Yiu Kei (DCPI 453/2008, 7 January 2009, HHJ Mimmie Chan, as the Hon Mimmie Chan J then was) and Au Suk Man v Chan Chi Wai (DCPI 1213/2013, 10 February 2015, DDJ Philip WK Wong), including all comparables in turn cited within them, taking inflation into account, and bearing in mind P was indeed prescribed and had to wear a neck collar[42], which I imagine must be quite uncomfortable, my decision is to award a sum of HK$60,000 to P for PSLA.

Pre-Trial Loss Of Earnings

66.  On pre-trial loss of earnings, I accept Mr Sadhwani’s written submissions[43] that P’s pre-accident income from HAECO, Deliveroo Hong Kong, etc., was never challenged.  However, Mr Chung was correct to say I should adopt the “but for” test and ignore P’s pre-accident income from HAECO[44].  In gist, when P was specifically cross-examined on why did he quit his job at HAECO in May 2019, P’s answer was: -

“That work required day and night shifts. I was working on day and night shifts. When I got married, then I decided not to work for a job which require day and night shifts. So I quit this job and found another -- and started another job.”[45]

67.  Given P’s answer, it is crystal clear to me that with or without the accident on 9 August 2019, P would never work for HAECO again.  It was a marital reason completely unrelated to the accident which caused P to change his job.  But for the accident, P would have continued to work as a driver for Mohammed Banaris, earning at most HK$20,000 per month[46], instead of returning to work for HAECO.  Pre-trial loss of earnings should at most be assessed on the basis of an income of HK$20,000 per month.

68.  Pausing here, I must condemn P for the wholly unsatisfactory way he tried to prove his alleged income of HK$20,000 per month.  Despite being represented by solicitors throughout, the only piece of documentary evidence P had ever produced for this was a simplistic and dubious letter[47]. I have actually seen a litigant-in-person doing better than this.  Where, one may ask, were the business registration certificate and tax documents of his alleged employer?  Why was his alleged employer not called as a witness?  The litigation conduct of P in relation to this was unacceptable.  Solicitors accepting legal aid assignments in personal injuries matters all have a duty to specifically advise the aided-persons in question on these and all similar evidential issues.  I assume, in the absence of evidence to the contrary, that P’s solicitors performed that duty.  As I had mentioned in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514 (at §§50 & 51) and Fang Zhaohua v Kam Fung Engineering Limited [2023] HKDC 971 (at §29), applying what Yuen JA had famously said in L v C [2007] 3 HKLRD 819 at §191(2), whenever a litigant has been guilty of failing to make full disclosure, he cannot complain if uncertainties are then determined against his favour.  P would be unable to complain if I were to decide uncertainties (eg whether any sum is net of, or inclusive of, MPF payments) against him by reason of the way he failed to disclose and produce material documents to prove his own case on quantum.

69.  Having said that, Ds did not adduce any evidence to contradict that simplistic and dubious letter[48]. Whilst Ds suggested a monthly income of HK$18,000 at §14 of their Answer, on careful reading that was framed as just an “assumption”[49], and no evidence was adduced to make good that suggestion.  In such circumstances, I would, with reluctance, use the figure of HK$20,000 per month[50] as the basis for my assessment.  P adduced no evidence on MPF declarations or payments whatsoever, meaning I cannot be sure whether that figure was net of or inclusive of any actual or potential MPF contributions, or as to whether MPF declarations or payments crossed the minds of the parties at all.  I thus decline to factor-in any kind of MPF contributions for the purpose of this assessment.

70.  On duration, the parties sensibly agreed I was never bound by sick leave certificates.  As I mentioned in Wu Yurong v On Time Building Material and Engineering Co Ltd [2023] 3 HKLRD 76 [2023] 4 HKC 640 [2023] HKDC 670, the leading authorities were Yeung Lai Ping v Secretary for Justice [2022] HKCA 689 (at §36 per Kwan V-P) and Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 (at §18 per Le Pichon JA).  It is for me to consider the appropriate duration by looking at the totality of the evidence before me, including the evidence on whether P had been exaggerating his subjective symptoms to all or some of his own doctors and thereby adversely affecting the reliability of the doctors’ views on sick-leave issues.

71.  Looking at the totality of all medical evidence, it seems to me that P could return to work within days.  P did not need to have made a full recovery to resume work[51]. Even if we were to be generous, it seems clear to me that the maximum duration should be 6 months[52].  Since Ds’ Answer made repeated references to “after” 6 months[53], giving the impression that Ds would be content with 6 months, and Mr Chung’s written submissions also made it clear Ds would be content with 6 months[54], it could be unfair to P if I were to certify a sick-leave duration shorter than 6 months in this matter.  All things considered, I adopt 6 months as the appropriate duration for P, and calculate P’s pre-trial loss of earnings accordingly.

72.  I further agree with Mr Chung, counsel for Ds, that looking at the independent record of the Inland Revenue Department (“IRD”), P must have earned HK$4,350[55] within the 6-months sick leave period.  The IRD does not lie – there was no suggestion from any party that it did.  This sum must therefore be deducted, otherwise P would be over-compensated under this head of damages.

73.  By reason of the above, my award of pre-trial loss of earnings is (HK$20,000 per month x 6 months) minus HK$4,350 = HK$115,650.

Future Loss Of Earnings, Etc.

74.  As explained above, P’s injuries were very minor.  He clearly had no fear of driving.  He drove for Hercules Logistics after the accident[56]. There was never anything wrong with his limbs[57]. In any case, P admitted he could operate the pedals of auto-gear vehicles without any problem[58]. P could be a driver again after at most 6 months of sick leave.  Further, P did not become any less employable by reason of the accident.  There are loads of driving jobs in the market each paying HK$20,000 per month[59] or more – P never adduced any evidence to the contrary.  P’s future loss of earnings is clearly zero.

Other Special Damages

75.  The parties did not spend much time arguing over the payment of special damages, which was sensible.  Ds proposed that I adopt a broad-brush approach and award something between HK$10,000 and HK$15,000 in relation to this.  P proposed HK$23,990.  For my part, I would only take issue with P’s claim of HK$4,000 for “tonic food”.

76.  On “tonic food”, Mr Sadhwani drew my attention to what was famously said by Bharwaney J in Lam Chan Hung v Hang Yue Engineering Ltd [2013] 3 HKLRD 420 (§§64 to 67), which I had considered.  The main difference in our case is that P not only failed to produce receipts, he failed to say anything at all about this in P’s WS.  The RSoD including its §29 on tonic food is just an assertion, and not by itself evidence.  It is also difficult to see why any person, of whatever cultural background, would be buying tonic food for injuries as minor as the ones suffered by P in the accident on 9 August 2019.  In fact, P gave evidence before me but did not even assert he bought “tonic food” on oath.  Nor was there any explanation from P or Mr Sadhwani as to what, if anything, was bought.  That was despite §20 of Ds’ Answer clearly denying P’s entitlement to this[60].  In such a scenario, I decline to award any sum for the alleged but unproven “tonic food” claim.

77.  My award of special damages would therefore be P’s proposal of HK$23,990 minus the HK$4,000 for “tonic food” = HK$19,990.

Pre-Existing Condition?

78.  Given my findings above, there is no need for me to deal with Ds’ alternative case of “pre-existing condition”.  I would, however, record that I have read everything there was to read about this, and am fully aware P had well-documented pre-existing medical conditions which had nothing to do with the accident in 2019.  In so far as P had genuine symptoms which could not be adequately explained by the accident in 2019, they would most probably be caused by pre-existing medical conditions for which Ds should never be held legally liable.

Interests

79.  The parties agreed interests on PSLA should be 2% per annum from the date of the writ to the date hereof, whilst interests on pre-trial loss of earnings and other special damages should be at half-judgment rate from the date of the accident to the date hereof.  I endorse the parties’ agreement, which was in line with the usual practice, and award interests accordingly. See, e.g., Lam Chan Hung v Hang Yue Engineering Ltd [2013] 3 HKLRD 420 (§70, per Bharwaney J).

Costs

80.  The parties proposed that I make an order nisi for costs.  On a nisi basis, I order P to pay all costs of the assessment of damages, including all costs previously reserved, starting from the day of judgment on liability, to Ds, the quantum of which is to be taxed on the full indemnity basis with certificate for one counsel (that one counsel being Mr Chung) if not agreed (“the Order Nisi”), primarily on the basis that in my view, this is a terrible case of “symptom exaggeration” with P having wasted Ds’ costs, precious judicial resources, and important public funds managed by the Director of Legal Aid, dealing with his various lies as set out above.  Having properly considered the well-known CFA authorities of (1) Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 and (2) Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 [2020] HKCFA 2 on indemnity costs, this is in my view a most appropriate case for P to be held liable for costs on a full indemnity basis.  As the Chief District Judge had said in Khan Asaf Nawaz v Secretary for Justice [2023] HKDC 605 (§75), the indemnity costs order is never to meant to punish P and will not entitle Ds to recover more costs than they had incurred but given how deplorable P’s litigation conduct had been, with P most unreasonably insisting on a false case on quantum, such an order would “achieve a fairer result” for Ds, in the sense that Ds would at the very least be out-of-pocket to a lesser extent.

81.  Unless a party takes out a summons within 14 days from today to vary the Order Nisi, the Order Nisi shall become absolute without further order.

82.  P’s own costs shall of course be taxed in accordance with the Legal Aid Regulations.  In my view, the assignment and attendance of Mr Sadhwani was necessary.  In fact, Mr Sadhwani should have been assigned to handle this matter much earlier.

Disposition

83.  In summary, the damages payable by Ds to P (via the Director of Legal Aid only) are assessed by me to be HK$195,640 in total, with the breakdown being as follows: -

(1)  PSLA – HK$60,000.

(2)  Pre-Trial Loss of Earnings – HK$115,650.

(3)  Other Special Damages – HK$19,990.

84.  The directions on interests and costs shall be in terms of §§79 to 82 above.

85.  Given the rather small quantum of damages payable by Ds to P, and the probable quantum of costs payable by P (or the Director of Legal Aid) to Ds, it seems highly likely that the net payment would be from P (or the Director of Legal Aid) to Ds.  This goes to show how litigants with only claims to very small sums should think more carefully before commencing a legal action or insisting on a full-blown hearing.  It can be wholly unwise, and a waste of time and money.

Final Remarks

86.  I thank all counsel who appeared before me on 17 and 18 April 2024 and/or prepared written submissions (including Mr Jethro Pak, whose attendance I did not certify for the purposes of inter partes costs taxation) for their most able assistance.