CHAN SIU LUN v. HUI CHO YEE AND ANOTHER

FAMV No. 30 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 171 OF 1999)

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DETERMINATION

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Mr Justice Ching PJ :

1. The applicant was injured in a traffic accident as long ago as 7 December 1988. In 1991 he instituted an action against the owner and the driver of the vehicle and was awarded damages against both of them, reduced by contributory negligence. He appealed to the Court of Appeal where his damages were increased. Being still dissatisfied he applied to this Committee for leave to appeal to the Court of Final Appeal. His application was dismissed. Subsequently he instituted a further action against the same two defendants for damages in relation to the same accident. The action was struck out by the Master whose decision was upheld by a judge in the Court of First Instance and in the Court of Appeal. The latter court also refused him leave to appeal to the Court of Final Appeal and he now applies to this committee for such leave.

2. The applicant, who appears in person, has put before us a mass of material and arguments which demonstrate clearly that he is mistaken in his understanding of the law and that he can have no complaint as to the judgments in the Courts below. His action was struck out on the grounds that the matters he seeks to raise are res judicata, having regard to the judgment in his first action, and that this action is therefore an abuse of the process of the court. There is no room for any argument based on questions of abuse of process short of res judicata, the parties and the cause of action being precisely the same in each action. He seeks to differentiate the two actions by saying, for instance, that in the first action the second defendant was described as a chauffer which is a word that cannot be found in the dictionary whereas in this action the second defendant is described as a chauffeur. It would be a very sorry day if arguments such as this can be entertained. He then says that in the second action the second defendant is described as having been driving as the servant or agent of the first defendant whereas he was not so described in the first action. The fact remains that he obtained damages against both defendants in the first action. Next, he says that he claimed further or other relief in the second action but not in the first. What that relief may be, over and above special and general damages, interest and costs, cannot be imagined and they were all claimed in the first action. The rest of his arguments amount to no more than that he is dissatisfied with the quantum awarded to him by the Court of Appeal in the first action. That is no justification for issuing the proceedings in this action, for his cause of action has gone.

3. His final argument is that he wishes to produce further medical evidence without the consideration of which he did not have a fair trial in the first action. Leaving aside whether or not the fairness of the first trial is a valid basis for instituting the present proceedings it remains that it was for him to produce the evidence then and he did not. In paragraph 2(vi) of an affirmation filed before the Court of Appeal in the present proceedings he makes it clear that he had received the defendants' medical evidence only about a week before the first trial and attempts to excuse himself on the basis that as a layman he was unable to understand it and did not, as a layman, have the 'knowledge, time, resources or capability' to file further evidence. He was legally represented at the first trial. He shows none of the qualifications for the admissibility of fresh evidence.

4. These proceedings, the appeals to the Court of First Instance and to the Court of Appeal, and this application should never have occurred. The Court of Appeal, justifiably in all of the circumstances, dismissed his application to appeal to the Court of Final Appeal with costs on an indemnity basis. There is no reason why this committee should take a different course. This application is dismissed with costs on an indemnity basis.