BAM GANESH v. HUSSAIN MAROOF

cacv 47/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 47 of 2007

(on appeal from DCCJ NO. 3125 of 2005)

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J U D G M E N T

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This is an appeal from a judgment of HH Judge H C Wong dated 12 December 2006 awarding the plaintiff the sum of $20,842 for services rendered as an interpreter between July 2002 and May 2003.  The plaintiff had originally claimed the sum of $383,000 but that was reduced to $257,833 at the close of his case at the trial.  The plaintiff brought this appeal and at the conclusion of the hearing judgment was reserved which we now give.

Background

3.  The plaintiff carries on business as an interpreter.  The defendant is Pakistani and speaks neither English nor Cantonese.  He is a construction worker who sustained injuries in an industrial accident on 5 June 2002.

4.  The plaintiff claimed that the defendant orally agreed to engage his services as an interpreter in relation to the latter’s claim for personal injuries and that the agreed rate was $2000 per hour.  The defendant admitted to engaging the plaintiff’s services as interpreter but at $204 per hour.

5.  The writ was issued in June 2005 and the claim was based on 191½ hour’s work.  At the trial in December 2007, the plaintiff was legally represented but the defendant appeared in person.  His former solicitors Messrs Tang and Tang ceased to act in May 2006.  At the close of his case, the plaintiff reduced his claim to $257,833 representing 128 hours and 55 minutes of work.

6.  At the trial, apart from the parties themselves, there was another witness, a Mr Yasin who gave evidence on behalf of the defendant.  Mr Yasin had provided a witness statement in English which is dated the 30 December 2005.  His evidence was to the effect that he had accompanied the defendant to the plaintiff’s office and had overheard the conversation between the plaintiff and the defendant agreeing the hourly rate of $204.

7.  After hearing oral evidence in a trial lasting 2½ days, the judge rejected the plaintiff’s evidence relating to both the hourly rate and the number of hours worked.  She found the defendant’s version more credible given all the circumstances, noting that it was supported by the evidence of Mr Yasin whom the judge found to be an honest witness.  The judge held that the agreed rate was $204 per hour and the number of hours worked was 102 hours and 10 minutes.  She made an award in the plaintiff’s favour on that basis.  The judge made no order as to costs, taking the view that the claim had been exaggerated and should have been made in the Small Claims Tribunal.

This appeal

8.  Both parties appeared in person at the hearing of the appeal.

9.  The plaintiff’s first point was that although Mr Yasin had made his witness statement in English, he had stated on oath at the trial that he did not know English.  In addition, it was also pointed out that the defendant’s own witness statement (which was also in English) was signed by Mr Yasin as interpreter.  The plaintiff asserted that Mr Yasin had never been involved and that the first time the plaintiff ever saw him was at the trial.  The nub of the complaint was that the judge had erred in finding the defendant and Mr Yasin to be credible witnesses.

10.  In response, the defendant confirmed that Mr Yasin indeed does not know any English.  The defendant explained that the witness statements had been prepared by his former solicitors and on the occasion when they were made, both Mr Farid and Mr Yasin had accompanied the defendant to his solicitors’ office.  He also said that it was a Mr Farid who had interpreted the respective witness statements to him and Mr Yasin, that Mr Farid understood Cantonese and had spoken to the solicitor before interpreting the witness statements.

11.  Since the appeal hearing, a perusal of the court file has revealed a decision dated 9 February 2007 made when the plaintiff applied for leave to appeal.  This decision is a relevant document which should have formed part of the appeal bundle.  It was not.  Nor were its contents made known to this court during the hearing.

12.  At § 5 of that decision, it is recorded that:

“5.        The defendant’s witness, Mr Yasin, his evidence was on one to two incidents concerning the defendant.  He confirmed the truth of the contents of his evidence when he gave his evidence-in-chief.  In cross-examination, he admitted that he understood Cantonese and that the contents of his witness statement was explained in Cantonese to him, the contents of the witness statement of the defendant was also explained to him and he in turn explained it to the defendant.  He claimed he was at the lawyer’s office at the time.”

13.  While there appears to be a discrepancy between the defendant’s explanation at the appeal hearing and § 5 of the decision, had this court been alerted to the existence of the decision, we would have been able to seek clarification from the defendant.  That course is no longer open to us.  Nevertheless, I do not consider the discrepancy to be of significance for the following reason.

14.  The defendant’s former solicitors were the solicitors of record for the defendant at the date the witness statements were made.  They were responsible for the witness statements.  In so far as any error has occurred in omitting an interpretation clause to Mr Yasin’s witness statement and in incorrectly identifying the interpreter for the defendant’s witness statement, the defendant’s former solicitors are responsible for those errors.  In the circumstances, those errors do not affect the credibility of either the defendant or Mr Yasin.

15.  The other main point made by the plaintiff was that the judge had erred in allowing the witness statements to be adopted as the evidence in chief of the defendant and of Mr Yasin and that by so doing the judge had deprived herself of the advantage she would otherwise have had of seeing and hearing how the defendant and his witness responded to oral examination in chief.  The plaintiff relied on a passage from the judgment of Godfrey JA in So, Amy v Au Leslie [1995] 2 HKC 113, 118G-I which reads as follows:

“Leslie’s evidence in chief, and Goldie’s evidence in chief, was given by way of witness statement ordered by the judge at the trial to stand as the witness’s evidence in chief.  (The same course was adopted for the evidence in chief of Tony, Simon and Amy.)  This is a course which a judge is entitled in his discretion to take.  But the most important factor for a judge to consider in deciding whether or not to take it is the extent to which the evidence of a particular witness is likely to be controversial, and his credibility put in issue.  In these circumstances, the way in which the witness responds to the oral examination in chief may be of great importance; and, that being so, it is wrong in principle to make orders applying to all witness statements without regard to the extent to which the witness’s evidence is likely to be controversial and go to the heart of the dispute: …”

16.  The complaint was premised on the defendant and Mr Yasin not having given any evidence-in-chief.  As a matter of record, the premise appears to be false.  This emerges from the decision of 9 February 2007 referred to above.  Counsel for the plaintiff who had made the leave application had taken the same point before the judge who had this to say:

“4.        The defendant was unrepresented at the trial, the plaintiff was represented by a solicitor, Mr Henry Wong, at the trial both the defendant and his witness, Mr Yasin, were cross-examined vigorously on their evidence.  The defendant gave lengthy and extensive evidence-in-chief.  He gave his evidence from the beginning of this first encounter with the plaintiff and the assistance he received from the plaintiff as his interpreter.  This evidence was given orally in court before he was cross-examined.”

17.  That the defendant gave evidence in chief at the trial also appears from the contemporaneous notes made by the judge’s clerk at the trial.  As the defendant had no legal representation, it was the court who had put questions to the defendant based on his witness statement and this took place before cross-examination by the plaintiff’s solicitor.  The same applied to Mr Yasin.

18.  As to the So case, I would observe that what is there stated does not take away the judge’s discretion.  Trials would be needlessly prolonged if in every case where the evidence of a witness is controversial and his credibility is put in issue (and that must arise in most cases), evidence in chief has to be given.  The judge’s discretion to be exercised sensibly having regard to the circumstances of the particular case.  In the present case, the defendant was not legally represented.  In my view, the course adopted by the judge is beyond reproach and eminently sensible.  (I must confess to being puzzled as to why leave to appeal was granted.  In my view it ought not to have been but that is now water under the bridge.)

19.  Finally, it was also said that the plaintiff could not have accepted a rate of $204 an hour as the taxi fare to Tuen Mun Hospital, for example, cost $290.  In the absence of a transcript, it is unclear whether this point was made below and whether the relevant receipts had been produced.  This is not a matter that this court can deal with unless the plaintiff is in a position (which he is not) to demonstrate, for example, that the judge had overlooked crucial evidence.  I would note in passing that it does not feature as a ground of appeal in the notice of appeal filed at a stage when the plaintiff was legally represented.

Conclusion

20.  This appeal is entirely without merit.  I would dismiss the appeal and I would also propose that there be an order nisi of costs in favour of the defendant although being a litigant in person, the amount of costs is likely to be no more than nominal.

Hon Barma J:

21.  I agree.

Hon Rogers VP:

22.  There will therefore be an order in terms of paragraph 20 above.