WONG TSAN MING v. TSE CHI MAN AND ANOTHER

HCPI 73/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 73 OF 2007

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R U L I N G

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1. The 2^nd Defendant applied to re-open the case by adducing evidence of a surveillance report.  The two most important considerations in this late application, are relevance and consideration of justice.

2. So far as relevance is concerned, the 2^nd Defendant wishes to adduce the evidence of a surveillance report to impeach the credibility of the Plaintiff, in particular his assertion that he was unable to carry on with his previous painting contracting business.  The Plaintiff has already testified that, because of the accident and the injuries he suffered, he had suffered loss of profits and that he was no longer able to receive orders to carry out his painting business.  It was suggested that the intended surveillance report would show that the Plaintiff was walking about outside shops selling paint, and going into some residential buildings with workmen-like people.  However, the buildings were not the building in which the Plaintiff lived.

3. This evidence may or may not damage the Plaintiff’s assertion that he was no longer able to carry out painting work.  However, there is a reason for the 2^nd Defendant to feel aggrieved if the 2^nd Defendant who is now in possession of an evidence, which may impeach the Plaintiff’s evidence, is not allowed to adduce it. The sense of grievance will be tremendous.

4. I also note that if the 2^nd Defendant can succeed in persuading this court to draw an adverse inference from the surveillance, it would have a high bearing on the quantum. It is because presently, the Plaintiff claims a very substantial amount of loss of earnings,both pre and post-trial.  The total amount which the Plaintiff claims for loss of earnings in fact comprises the large part of his claim, which is exceeding $5 million.

5. For that reason, I am inclined to take the view that, the evidence is highly relevant, and in the interests of justice, I should allow the Defendant’s application.  However, at the end of the day, discretion still remains with me.  If the circumstances under which the 2^nd Defendant came to this Court for leave to adduce such evidence were such that it would not be justifiable for the Court to exercise the discretion, I should still disallow the application, even though the materials to be adduced may be relevant.  The kind of conduct I can think of which would entitle me to refuse, or to exercise my discretion to disallow an application would be a conduct such as dishonesty or bad faith.  I do not see any of such conduct in this case.

6. I note that Mr. Wong, in opposing the application, had criticised the unsatisfactory way the surveillance company had conducted the surveillance.  However, this may be a matter of comment at later stage. I do not see however any such criticism could be attributed either to the 2^nd Defendant or to its Solicitors.

7. Therefore, in the circumstances, I think it is appropriate for me to exercise my discretion to allow this application.  Any prejudice that may be caused is only financial, and I agree with Mr. Lam that any prejudice could be compensated by way of interest and also by costs.

8. I grant the 2^nd Defendant’s application to reopen the case by adducing the evidence of the surveillance.

Costs

9. I have not found in the above that the solicitors have committed any mala fide when making the late application.  However, after having read the affidavit in support of this application, I observe that the 2^nd Defendant’ssolicitors hadchosento continue to give instruction to conduct the surveillance on the Plaintiff even very close to the time of the hearing.  In so doing, the 2^nd Defendantwould have known that any useful evidence would likely to be available only after the hearing on  May 14.  In instructing  the surveillance company to continue with  the surveillance after the hearing, the 2^nd Defendant would have surely known that any additional evidence to be adduced would have the likely effect of delaying the case.  Itmust have reasonably expected to bear a consequence for costs thrown away.

10. In the circumstances, I agree with Mr. Wong that the 2^nd Defendant (though I have allowed the application) should bear the costs of today in making the application.  I would also order that the costs should be gross sum assessed in lieu of taxation.

11. In assessing what is the reasonable costs for this application, I must stress that all reasonable costs should only be in relation to the 2^nd Defendant’s application for leave to reopen this case.  All other costs in relation to the previous hearing, that is,costs for the closing submissions, should not be included as the costs of today’s hearing.

12. With thisremark, I take the view that the reasonable party and party costs should also include costs of solicitors’ attendance of two and a half hours at the rate of $3,200 an hour.  So far as Counsel’s attendance is concerned, I will say that for a hearing of this nature, reasonable brief fees should be $25,000.  So the gross sum cost is $33,000, to be paid by the 2^nd Defendant forthwith.

(Submissions on filing of documents)