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DCCJ 3113/2012
[2018] HKDC 696
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3113 OF 2012
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BETWEEN
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886HK LIMITED |
1st Plaintiff |
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KIM TSAN JUNG |
2nd Plaintiff |
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and |
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AMJAD NADEEM |
Defendant |
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| Before: His Honour Judge MK Liu in Chambers (Open to Public) |
| Date of Hearing: 14 June 2018 |
| Date of Decision: 20 June 2018 |
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DECISION
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Introduction
1. By a judgment handed down on 19 April 2018 (“the Judgment”), I assessed the quantum of damages payable by the defendant to the 1st plaintiff and the 2nd plaintiff as a result of the water seepage from the defendant’s premises at HKD689,300 plus interest and HKD186,000 plus interest respectively. By a summons filed on 15 May 2018 (“the Summons”), the defendant seeks leave to appeal. The facts have been set out in the Judgment and I would not repeat the same herein. For ease of reference, unless otherwise specified, the abbreviations used in the Judgment are adopted herein.
The Grounds of Appeal
2. The defendant puts forward 2 grounds of appeal in the summons:-
(1) that this court erred in law regarding the burden of proof; and
(2) that this court erred in not requiring the attendance of the Expert.
3. Mr Hunter, counsel for the defendant, has provided me a document dated 3 May 2018 and called “Grounds of Appeal”. These are in fact the written submissions made by Mr Hunter. To avoid confusion, I would call this document as the defendant’s written submissions (“D’s WS”).
4. It is pertinent to note that the defendant’s position as set out in the D’s WS:-
“5. The court correctly focused on the latter period of water seepage, that is to say the following the burst water pipe incident. The expert report was based on evidence collected before this period, so, in respect of the damage caused, the only evidence available was that of the Plaintiff[1] and the invoices for repair work carried out subsequently, together with the tenancy agreements and invoices regarding the rent of alternative accommodation during the renovation period.
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9. The Plaintiff gave evidence regarding the involvement of walls, floors and certain fixtures. This was, essentially, the only evidence of the nature and extent of such damage as there may have been. The court accepted the witness as credible and reliable. His[2] credibility was not impugned by the Defence. Credibility and reliability, however, are not the same thing.
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11. …… the credibility or honesty of the witness is not impugned ……” (Emphasis added)
These have to be borne in mind in considering the defendant’s application for leave to appeal.
The principles
5. The principles concerning leave to appeal are trite and can be summarized as follows:-
(1) Leave to appeal from this court to the Court of Appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard[3].
(2) Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable[4].
(3) The appellant has to overcome a very high threshold in order to successfully challenge the factual findings made by the trial judge. The Court of Appeal would not interfere unless the factual findings made by the trial judge are plainly wrong[5].
Ground 1
6. With respect to Mr Hunter, I cannot see how it can be said that this court has made any error regarding the burden of proof. This court made the assessment in the Judgment after considering the evidence giving by the 2nd plaintiff and the documents in this case.
7. Mr Hunter has made some criticism against the quality of the 2nd plaintiff’s evidence. Mr Law, counsel for the plaintiffs, has made a succinct reply to Mr Hunter’s submissions. I agree with Mr Law that the criticism made by the defendant is without merit.
(1) Mr Hunter submits that “at no point and nowhere in the available evidence was the extent of the damage of the Water Flooding Incident described”[6]. This cannot be right. The evidence concerning the Water Flooding Incident has been summarized in the Judgment §§11(h) to 11(s). The extent of the damage has also been set out the 2nd plaintiff’s witness statement §§12-19. The damage was also supported by the quotation and invoices. The defendant’s contention is untenable.
(2) It is submitted that “there were no photographs or measurements to support the evidence”[7]. However, the defendant does not dispute that the 2nd plaintiff is a credible witness. There is also no challenge to the reliability of the 2nd plaintiff’s evidence during cross-examination. The plaintiffs have also produced documents[8] in support of their claim. In my view, there is nothing in this criticism.
(3) It is submitted the 2nd plaintiff is “someone with an interest in the outcome”[9]. However, Mr Hunter has made it plain that there is no challenge to the 2nd plaintiff’s credibility or honesty. That being the case, there is in fact no point in saying that the 2nd plaintiff is someone having an interest in the outcome of the case.
(4) It is also submitted that “the witness was being asked to recall something that happened seven years ago”[10] and the evidence given may not be reliable. However, one’s residence being severely damaged by water seepage problems would not a daily encounter but would be a special event in one’s life. Further, Mr Hunter did not test the reliability of the 2nd plaintiff’s memory during cross-examination, and did not put to the 2nd plaintiff that her memory was not reliable. I am of the view that there is no merit in this point.
8. I am not persuaded that there is any merit in this ground.
Ground 2
9. Although this ground is stated on the summons, this is not pursued in the defendant’s submissions[11].
No leave should be granted
10. For the reasons set out above, I am not satisfied that there is no reasonable prospect of success in the defendant’s appeal. I also do not see any other reason in the interests of justice that the appeal should be heard. I would dismiss the summons.
Disposition
11. I dismiss the summons.
12. I have heard submissions on costs. There is no reason to depart from the general rule of costs following the event. I order that costs of the summons be to the plaintiffs, with a certificate for counsel, to be taxed if not agreed.
13. I thank Mr Law and Mr Hunter for the assistance rendered to the court.
Mr Ryan Law , instructed by Joseph Leung & Associates, for the 1st and 2nd plaintiffs
Mr Hugh Rowan Hunter, instructed by Lai & Chaudhry Solicitors LLP, for the defendant
[1] This should be the 2nd plaintiff, who is the only factual witness giving evidence in the trial.
[2] The 2nd plaintiff is a lady.
[3] District Court Ordinance, s 63A(2)
[4] SMSE v KL [2009] 4 HKLRD 125, at [17]
[5] Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd. and Others (CACV 11/2015, 27 November 2015)
[6] D’s WS §10
[7] D’s WS §10
[8] Mentioned in D’s WS §5
[9] D’s WS §11
[10] D’s WS §11
[11] D’s WS §6
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