GREAT LOYAL LOGISTICS LTD v. CHAN YICK YUI t/a MING FAI MOTOR CAR ENGINEERING

DCCJ 2415/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2415 OF 2013

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DECISION

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Introduction

1.  By my judgment dated 14 November 2016[1], I dismissed the plaintiff’s claim and gave judgment in favour of the defendant in respect of his counterclaim.

2.  By 2 summonses taken out by the plaintiff, the plaintiff applied (1) for leave to appeal and (2) to vary the costs order nisi.

Legal principles

3.  Section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, ie whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP357/2011, 8/7/2011, unreported.

5.  Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p48.

6.  Deputy District Judge Elaine Liu in Jiang Zhong v Up Cheer Ltd, DCPI 2047/11, 18 April 2016, unreported, has usefully summarised the legal framework in relation to the question of costs, which I gratefully adopt:-

“8. The court has a wide and unfettered discretion on the decision of costs. Section 53(1) of the District Court Ordinance provides that:-

“The costs of and incidental to all proceedings in the Court … are in the discretion of the Court, and the Court has the full power to determine by whom and to what extent the costs are to be paid.”

9. The powers and discretion of the court as to costs under section 53 shall be exercised subject to and in accordance with Order 62 of the Rules of District Court (See Order 62 rule 2). The discretion shall be exercised judicially.

10. The relevant factors in Order 62 rule 5 that this court shall take into account are:-

“(aa) the underlying objectives set out in Order 1A, rule 1;

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(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful”

11. The conduct of the parties include:-

“(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in party, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

(Order 62 rule 5(2))”

The intended grounds of appeal

7.  The plaintiff put forward 2 intended grounds of appeal:-

(1) The learned Judge ought to have held that there (is) a prima facie case of negligence established against the Defendant on the following grounds:

(a) The damage to the engine should be considered as falling within the sphere of the defendant’s responsibility to take due care of the plaintiff; or alternatively

(b) the plastic bag could not have found its way into the engine without the negligence of the defendant, his subcontractor or agent. (“Ground 1”)

(2) The learned Judge ought to have held that the defendant has failed to provide any plausible explanation for the plaintiff’s damage which is consistent with the absence of negligence on his part and he should be found negligence and be liable to the damage suffered by the plaintiff in the sum of HK$216,450.90 under the doctrine of Res Ipsa Loquitur. (“Ground 2”)

Ground 1

8.  Mr Lam Kei Pun, who appeared for the plaintiff, submitted that the defendant’s agent had undertaken the work of changing engine oil around 22 December 2012.  This was the last known incident that the engine was opened.  As the engine is a fully enclosed system, the damage to the engine should be considered as falling “within the sphere of the defendant’s responsibility to take due care of the plaintiff” and therefore a prima facie case is established against the defendant.

9.  With respect, Mr Lam has over-simplified the basis upon which the court has to find that a prima facie case of negligence exists.

10.  For reasons stated at paras 73 to 78 of my judgment, I am unable to hold that a prima facie case of negligence is established.

Ground 2

11.  The viability of Ground 2 depends on whether the maxim of res ipsa loquitur can be invoked.  As I am unable to hold that a prima facie case of negligence is established, Ground 2 simply cannot get off the ground.

Variation of costs order nisi

12.  Mr Lam submitted that after trial, I accepted the expert evidence of the plaintiff and rejected that of the defendant.  Should the defendant agree with the expert evidence of the plaintiff, most of the costs could have been saved.  Therefore, the defendant should only be entitled to half of the costs.

13.  The defendant is entitled to run his defence in the way he or his lawyer thinks appropriate.  One of the issues in dispute in this case is the cause of the engine breakdown.  The parties are entitled to put forward their own case and to call evidence including expert evidence in support.  At the end of the day, the court is to determine the issue by applying the civil standard of proof, namely, on the balance of probabilities.  Therefore, it cannot be said that because the court finds for a party on a particular issue, the other party should have given up his right to run his case in opposition in the first place.

14.  For the above reason, I see no merit in the plaintiff’s submission.

Conclusion and order

15.  By reasons of the foregoing, I do not think the plaintiff has demonstrated a reasonable prospect of success by its proposed grounds nor do I see there is any other reason in the interests of justice that the appeal should be heard.

16.  I am also not persuaded that I should vary the costs order nisi.

17.  Accordingly, I order that:-

(1) the plaintiff’s application for leave to appeal is dismissed; and

(2) the costs order nisi made pursuant to my judgment dated 14 November 2016 is made absolute.

Costs of the 2 summonses

18.  Costs should follow the event.  I order that the plaintiff shall pay the defendant the costs of these 2 summonses with certificate for counsel, to be taxed if not agreed.