LO CHI PING v. MA CHI HUNG

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. This is an appeal against the decision of His Honour Judge Sharwood sitting as a deputy judge of the High Court given on 12th November 1991 whereby he dismissed the plaintiff's claim for damages in respect of a traffic accident which itself took place on 5th April 1985. For myself I have no hesitation in dismissing the appeal.

2. The trial lasted some 17 days. A considerable part of it was devoted to pinpointing the exact location of the accident, which was accepted as being on the Repulse Bay Road between Repulse Bay and the Stanley turn-off, but there was dispute as to whether it occurred by RB76 or RB78. The judge concluded that it was the latter.

3. The plaintiff gave evidence. He said he had no memory of the incident and remembered nothing more than playing snooker with his friends and then later waking up in hospital. His case in the court below was that he was driving a Toyota Celica no. DD6566, referred to below and generally simply as "DD", to Stanley along Repulse Bay Road at about 2:15 in the morning. As he rounded a bend, which was a left hand bend as far as he was concerned, a Mercedes car, DE5373, referred to throughout as "DE", driven by the defendant came round the other way, across the double white lines. There followed a collision in which the plaintiff suffered quite serious injuries. The plaintiff's case was supported by his brother, who Was a passenger in the back seat of the car, by two other passengers and by the expert opinion of Dr. Lingard from the University of Hong Kong.

4. The defendant's case in the court below was that it was the plaintiff who was over the double white lines, and that he was over the white lines because he was overtaking or attempting to overtake another vehicle. The defendant suspected that the vehicles were in fact road racing, partly because immediately after the incident the defendant's car was hit again by a car following the plaintiff's and which was owned by an acquaintance of the plaintiff. The defendant's case was supported by his own evidence, by three of his four passengers, all of whom spoke of seeing four headlights coming at them together, and the expert evidence of Dr. Chandran of the Hong Kong Polytechnic.

5. In a reserved judgment, which contained a thorough review of the evidence and a careful explanation as to why he believed or disbelieved particular witnesses or particular parts of their evidence, the judge found the plaintiff's brother "not a reliable witness" and added that his evidence in any event provided little or no assistance in proving negligence on the part of the defendant. The judge found one of the plaintiff's passengers "an outrageous liar" and had no doubt that the other passenger was lying as. well. On the other hand the judge was favourably impressed by the defendant and his witnesses. He found them respectively "truthful and reliable", "an impressive witness and one whom I had no difficulty in relying upon", "an impressive and honest witness", and the last one, a lady, a witness "not giving evidence to assist anyone, or to support anyone's cause, but ... describing, as best as she could, what she had seen and experienced". In particular he said of the defendant himself "I am satisfied that he had been driving DE carefully and properly, on the correct side of the road, when the collision occurred".

6. The learned judge also dealt at length with the evidence of the two experts. The significant difference between them was whether the impact occurred at the beginning or end of the skid marks which the constable, who came to the scene that morning, had depicted on his sketch. The marks appeared as two straight lines on the plaintiff's own side of the road and parallel to the double white lines. Dr, Chandran took the view that they had been made after the impact, the plaintiff's car being kept in that position by the car which he had been overtaking and which would have been on his left. Dr. Lingard took the opposite view, that they had been made prior to the impact. He was forced to explain the damage to the nearside of the plaintiff's car as caused by the car rebounding from the concrete structure of RB78 back into its position on the road. In the end the judge preferred the evidence of Dr. Chandran, as he said, on the balance of probabilities. He rejected the rebound suggestion and felt that the marks made on RB78 were probably by the fourth car which did not stop.

7. Mr. Sarony, who now appears for the plaintiff, accepts the difficulties inherent in attempting to upset in this Court the finding of a judge below as to fact. He has therefore made no serious attempt to uphold the plaintiff's witnesses or to discredit the defendant and his passengers save as to one discrepancy between the defendant and the passenger as to whether the defendant was very familiar with the road in question. The judg did not th ink that a significant discrepancy and nor do I. Mr. Sarony concentrated instead on pulling Dr. Chandran to pieces.

8. The main burden of his appeal, as he outlined during the course of argument, was that "the independent data leave no other possibility than that most probably the defendant's car was on the wrong side of the road". By independent data he means the skid marks, the debris, the position of the vehicles after the accident, including of course damage to the vehicles, as they were depicted on the sketch drawn by the constable.

9. For my part I find it difficult to draw firm conclusions from these matters without the assistance of the expert evidence except where the matter is clearly obvious.Mr. Sarony suggests that the opinion of Dr. Chandran should provide no assistance to us, any more than it should have done to the judge below; his evidence is not to be relied upon in any way. To this end he has taken us at length and critically through, I think, most of the evidence of the doctor, comparing it at times with that of Dr. Lingard and pointing to errors, misunderstandings or evasions which he suggests in themselves gives the lie in any event to the rest of the doctor's evidence.

10. I have to accept that there are parts of his evidence that require on their face further explanation, but we did not find it necessary this morning to call for any explanation because, for my part, even if his hypothesis of how the accident occurred, which incidentally I note in passing, is entirely consistent with the accepted evidence of the eye-witnesses and was not rejected as an impossibility by Dr. Lingard, is completely discounted, the hypothesis of Dr. Lingard also fails by reason of the fact that the skid marks depicted on the sketch, as Mr. Sarony accepts, preclude any possibility of there being a rebounding of the plaintiff's car from RB78. Therefore in my view the independent data by no means leave the only possibility as suggested. The burden of the appeal has not been maintained.

11. In that circumstance only one other matter merits reference. During the course of the defence case Mr. Ozorio, then appearing for the defendant, as he does with Mr. Tong today, invited the judge to call as a court witness one Cheung Man Fai who was the person suspected by the defence as being the driver of the fourth car. He had given a statement to the police some two weeks after the incident and, as appeared later, was to some extent acquainted with the owner of the car that was driven that evening by the plaintiff. In the statement he had admitted driving another Toyota on that date along the same stretch of road, but approximately one hour earlier. For some reason he had lost control of the vehicle, run into the hillside kerb and damaged the nearside of the front of the car to such an extent that he had to abandon the car at RB81, a little further up the road, where it was apparently seen at the time of the incident by one of the police.

12. After considering the invitation that had been made by Mr. Ozorio counsel then appearing for the plaintiff raised no objection to Mr. Cheung's being called. But he did, after Mr. Cheung had given his evidence in chief, object to his being cross-examined by the defendant. The judge however refused the objection.

13. The judge was not impressed by the evidence of Mr. Cheung. He found his evidence "hardly credible" in parts, in particular as to his excuse for colliding with the hillside on a straight stretch of the road. The Judge concluded that in all the circumstances that "he was the driver of the red car which had slipped through on the inside" which he found confirmed "that the defendant's impression was correct, and that the defendant and his witnesses had indeed seen four headlights, as they so firmly asserted."

14. It is argued that there is nothing in the evidence of Mr. Cheung to support the conclusion. For myself I am unable to agree. The coincidences inherent therein unexplained as they are by the judge's disbelief of Mr. Cheung's own explanation, speak for themselves.

15. It is further argued that the judge was wrong to accept Mr. Ozorio's invitation, which could only have been made with the benefit of the defence in mind, and did not emanate, as the request by the jury in coulson v. Disborough [1894] 2 QB 316 would seem to have done, from a genuine desire to ferret out the truth.

16. For my part I think it would have been better for the judge to have declined the invitation for that reason, but I am unable to elevate his acceptance into a material irregularity as is now suggested. It was not irregular in that his discretion to call a witness is accepted. I am satisfied that it was not material. The judge himself observed that the cross-examination of Cheung made no difference to his decision. Understandably he went no further. But having accepted that the defendant and his passengers were honest and reliable witnesses and were supported, as he found, by the expert evidence, then regardless of the evidence of Mr. Cheung, there was only one conclusion open to him. In my view it was a correct conclusion. I find no reason to interfere with his decision or to order a re-trial and I would therefore dismiss the appeal.

Kempster, J.A.:

17. Having regard to the carefully explained conclusions of the judge as to the relative credibility of the witnesses resulting in his acceptance of the testimony of the defendant and his witnesses, and to the consistent explanation of the markings found on the road given by Mr. Chandran, whose evidence has vigorously been criticised before us, I too would dismiss this appeal.

Litton, J.A.:

18. I agree that this appeal must be dismissed and in so doing I too wish to commend Deputy Judge Sharwood for his exhaustive analysis of the evidence in the case. This has made our task in the Court of Appeal much easier in consequence.

19. The primary facts consisting of sketches, notes of marks on the road and of damage to the vehicles themselves, photographs taken after the collision etc. provide in this case at most a confused picture as to what happened that night. No re-construction of the events can be made from such material with any degree of certainty. One is necessarily in the realm of hypothesis.

20. An important feature of the case is this: the plaintiff's vehicle, DD, had left straight tyre marks on the road close to the double white lines, but on the proper side of the roadway. At first blush one might say this proves that the plaintiff's car had remained on its own side and it was the defendant's car which crossed the double white lines. But such conclusion would be inconsistent with the facts so clearly found by the judge.

21. The theory advanced by the defendant's expert, Dr. Chandran, was that DD, at the time of the collision, and vehicle which left those parallel marks on the road way, prevented from being thrown against the left hand side of the road by a vehicle or an object on the inside, most probably the car that the plaintiff was trying to overtake when the accident occurred. DD had extensive damage to its nearside and there was also found, as indicated in the sketch, scratch marks on RB78. Dr. Lingard's opinion was that this might have been because the plaintiff's vehicle had rebounded off RB78 but this is plainly inconsistent with the existence and the position of the parallel tyre marks shown in the sketch. This conclusion therefore impeaches to a considerable extent the opinion evidence given by Dr. Lingard at the trial. Dr. Lingard had plainly accepted that it was possible for a car to have slipped through on the inside causing those scratch marks on RB78 and also to the nearside of the plaintiff's car. When one adds these considerations to the testimony of the witnesses in the defendant's vehicle, who testified that they saw four headlights approaching moments before the impact, it is difficult to see how it could be argued that the judge was not entitled to draw the conclusions he did.

22. The judge was clearly struck by the extraordinary coincidence of the presence of a red car early that morning, with collision damage, a little distance up the road. By further coincidence the driver, Cheung Man Fai, happened to know the previous owner of the plaintiff's vehicle. When Cheung was called and cross-examined he turned out to be a most unsatisfactory witness. In my view what the judge was entitled to conclude from that evidence, at its highest, was that this was perhaps another straw in the wind, by no means proving that the damaged red car was involved in some sort of road race that night, but consistent at least with the theory advanced by the defendant's expert. For my part I think that the judge went too far when he said that those coincidences pointed "unequivocally to the involvement of Cheung in the collision between DD and DE". However this error was not in my judgment something so great as would require us to interfere with his overall findings; findings which were otherwise unimpeachable and admirably complete.

23. For these reasons I concur in the order proposed that this-appeal should be dismissed.