LEE SZE MAN (sue by CHING KWONG MING her mother and next friend) v. CHEUNG KIN WAH AND OTHERS

DCPI 648/2018

[2025] HKDC 616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 648 OF 2018

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BETWEEN

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DECISION

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Introduction[1]

1.  This is my decision on the following applications made by D1:

(1) By his summons dated 22 April 2024 (“Leave Application”), D1 applies for leave to appeal against my judgment handed down on 25 March 2024 (“Judgment”);

(2) By his summons dated 6 August 2024 (“Stay Application”), D1 applies for stay of execution of the Judgment pending appeal.

2.  The Leave Application was originally scheduled to be heard on 27 June 2024. By consent, the hearing was refixed due to the unavailability of P’s counsel.

3.  By the Judgment, I found that D1and D2 were liable for the Alleged Incident, namely D1 had sexually assaulted P on 10 August 2014. At the material time:

(1) P, a mentally incapacitated person, was a resident at the Care Home;

(2) D1 was the warden of the Care Home;

(3) By the Certificate of Exemption, D2 was authorized to operate, keep, manage or otherwise have control of the Care Home.

4.  D1 and D2 were held jointly and severally liable to pay damages assessed at HK$1,194,689.65. I also held that D2 was entitled to claim 70% contribution from D1.

The Leave Application

(i) Applicable principles

5.  Leave to appeal is only granted if the proposed appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard: SMSE v KL [2009] 4 HKLRD 125 §17. Reasonable prospect involves that the prospect must be more than fanciful without having to be probable.

6.  In the context of an appeal against factual findings, the appellant has to overcome a very high threshold in order to succeed. In particular, as set out at Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at §19: (1) the Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong, (2) in an appeal, the Court of Appeal focuses on the question where the primary judge has fallen into palpable errors which could give rise to grounds for intervention by the appellate court and it is not germane that the Court of Appeal may reach a different conclusion from that of the judge, and (3) it is not helpful for counsel and litigants in person to merely repeat submissions already advanced and considered by the primary judge at the trial and the starting point should be the judgment of the primary judge and the identification of palpable errors.

(ii) D1’s proposed “appeal grounds”

7.  As noted at Aluhouse Company Limited v Success Lane Development Ltd [2022] HKDC 17 §8, the proposed appellant should set out the concise grounds which are reasonably arguable in a draft notice of appeal.

8.  Instead of providing a draft notice of appeal, D1 instead relies on his affirmation dated 22 April 2024 (“D1 1^st”). As I understand D1’s position, his proposed appeal is only directed at liability and there is no proposed appeal against quantum or apportionment.

9.  The complaints set out at D1 1^st may be summarized as follows:

(1) §1 makes an overarching complaint that the Judgment is biased;

(2) §§2-12 assert that I was wrong in relying on hearsay evidence in finding D1 liable for the Alleged Incident (“Ground 1”);

(3) §§13-25 argue that there was no sign of P being traumatized before 22 September 2014 (Judgment §4.34) which D1 says was inconsistent with the Alleged Incident having happened on 10 August 2014 (“Ground 2”);

(4) §§25-31 attack the reliability of the Joint Medical Report (“Ground 3”);

(5) §§32-34 complain that there is no basis for the finding at Judgment §6.40, which is the conclusionary paragraph on the issue of liability (“Ground 4”);

(6) §§35-36 criticize my reliance on the Forensic Report and my rejection of D1’s evidence that he was framed (“Ground 5”).

(iii) Ground 1

10.  As set out at Judgment §6.13, I was of the view that the 3 Hearsay Occasions should be assessed separately. As I understand D1, his argument is that since I decided not to place any weight on 2 of the 3 Hearsay Occasions, namely Item 155(2) and the 15/8 Video Interview (Judgment §6.36), I was wrong in accepting the evidence on the remaining of the 3 Hearsay Occasions, namely the evidence on the conversation between P and Madam Ching on the evening of the Alleged Incident (Judgment §6.38). D1 says that I was in error because (1) I had already found P’s evidence to be unreliable on 2 of the 3 Hearsay Occasions and (2) I was wrong to find Madam Ching to be a honest witness because she was biased and had a vested interest.

11.  In my view, Ground 1 is plainly an appeal against factual findings and is not reasonably arguable for the following reasons:

(1) As pointed out at Judgment §6.10, P was already diagnosed with moderate mental retardation with a mental age of 6 to 9 years old at the time of the 3 Hearsay Occasions;

(2) At Judgment §6.12, I set out the considerations in assessing the weight to be attached to the 3 Hearsay Occasions, namely it was appropriate to assess hearsay statement against other factual/expert evidence before accepting any aspect(s) thereof;

(3) Bearing in mind P’s mental condition, I decided to place no weight on Item 155(2) and the 15/8 Video Interview, as P was on many occasions “guided” by Ms Kwan and Ms Lee (Judgment §6.36);

(4) I do not see how it can be said that I was plainly wrong in assessing the 3 Hearsay Occasions separately, and for the reasons given at Judgment §6.38, taking the view that the concerns relating to Item 155(2) and the 15/8 Video Interview did not apply to the conversation between P and Madam Ching on the evening of the Alleged Incident;

(5) I also do not see how it can be said that I was plainly wrong in accepting the evidence on the conversation between P and Madam Ching on the evening of the Alleged Incident, given its consistency with the Item 155(1) and the Forensic Report;

(6) D1’s complaint that Madam Ching was not a truthful witness is untenable. The suggestions that Madam Ching only gave selective evidence, was predisposed upon being shown Item 155(1) (Judgment §4.20), had exaggerated her evidence in court and was biased are plainly challenges directed at my assessment on credibility and disregard the undisputed evidence set out at Judgment §§4.27-4.28, namely that D1 had himself called Madam Ching to appease her, a report was made to the Police and D1 was later arrested.

(iv) Ground 2

12.  In my view, Ground 2 is not reasonably arguable. As pointed out at Judgment §6.28(1), P was diagnosed with SD and PTSD since September 2014 (which was only shortly after the Alleged Incident on 8 August 2014). There was no medical evidence to show that PTSD and SD ought to have surfaced immediately after a traumatic event (Judgment §6.30).

(v) Ground 3

13.  D1’s argument on the reliability of the Joint Medial Report is a rehash of the arguments already dealt with at Judgment §§6.25-6.32 (subject to what is set out in the following paragraph). No error has been identified.

14.  At D1 1^st §30, D1 suggests that the court should be vigilant to the inter-relationship or the causative relationship between P’s SD and PTSD (醫生並沒有明確指出2個病癥的先後次序或互為影響的情況，法庭必須注意這種情況，以免冤枉裁判，因此起訴方需要提出更實質的證據，再嚴謹的審案程序下使用，確保案件是在公平公正下審理). As pointed out at Judgment §§3.4 and 6.27, prior to the trial, D1’s application to call Dr Hung to testify at the trial had been dismissed.

15.  As such, there was simply no medical evidence adduced at the trial to support the argument now made by D1.

(vi) Ground 4

16.  As pointed out above, Judgment §6.40 is a conclusionary paragraph, D1’s criticism of Judgment §6.40 does not add to the other proposed appeal grounds.

(vii) Ground 5

17.  Ground 5 is directed at my reliance on the Forensic Report and my rejection of D1’s evidence that he was framed. At Judgment §§4.31(2)-(4) and 4.33, I set out factually the collection of samples by the police and the findings in the Forensic Report. At Judgment §§5.2 and 6.39(5), I set out D1’s evidence, adduced for the first time at the trial, to account for the findings in the Forensic Report.

18.  D1’s proposed appeal ground is again a rehash of the arguments already dealt with at Judgment. No error has been identified.

19.  For the above reasons, none of the proposed appeal grounds is reasonably arguable. I dismiss the Leave Application.

The Stay Application

20.  The Stay Application is supported by D1’s affirmation dated 6 August 2024 (“D1 2^nd”). D1 2^nd is identical to D1 1^st.

21.  As I have formed the view that the Leave Application should be dismissed, D1 has not surmounted the minimum requirement of demonstrating that existence of an arguable appeal. Further and in any event, no evidence has been adduced by D1 to show that his proposed would be rendered nugatory without a stay: Star Play Development v Bess Fashion Management Co Ltd, HCA 4726 of 2001, 7 June 2002 §§6-9.

22.  For the above reasons, I dismiss the Stay Application.

Conclusion

23.  The Leave Application and the Stay Application are dismissed. I make a costs order nisi that D1 is to pay to P the costs of the 2 applications to be taxed if not agreed, with a certificate for counsel. P’s own costs are to be taxed in accordance with the Legal Aid Regulations.

24.  As in the case of the Judgment, D1 agreed that this decision may be given in English. However, should D1 require any assistance, he may contact my clerk to arrange interpretation by a court interpreter at the District Court.