Erwiana Sulistyaningsih v. Law Wan Tung

DCPI 569/2015

[2018] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

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Before: Her Honour Judge Winnie Tsui in Court

Date of Hearing: 4 December 2017

Date of Decision: 4 December 2017

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DECISION

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1.I refuse the defendant’s application to rely on further documents which are produced at court this morning for the purpose of the assessment. I have taken into account the following matters.

2.First, it is for the defendant to justify her application.  First and foremost, the defendant needs to establish relevance of these documents to the issue of quantum.  At today’s hearing, she was only able to make the general observations that these documents would show that the plaintiff was not as seriously injured as she now claims and that the documents would show inconsistencies in the plaintiff’s evidence in these proceedings.

3.It is however for the defendant to make good her application, by pinpointing the specific documents or specific parts of the documents to establish the above propositions.  Instead, the defendant invites the court to review the documents on her behalf to see or confirm whether that is the case.  That is of course a totally wrong approach.  The court cannot possibly put together a case for any party.  Having had a quick chance to glance through the documents, Mr Tony Ko, counsel for the plaintiff, submits that some of these documents, most notably the medical reports, have already been included in the hearing bundles for this hearing.  Some other documents relate to the issue of liability and are therefore not relevant.

4.In any event, the defendant has wholly failed to substantiate her application and for that reason above, her application must fail.

5.Secondly, the defendant claims that she does not know English and it would be most unfair to her if she does not have any assistance from the court or a lawyer to go through the documents for her. She says since she was previously engaged in many sets of legal proceedings, she might not have fully grasped the significance of these documents as she was confused in the process.  One must however assess the defendant’s claim against the procedural background of this case.  Although the defendant acts in person at this hearing, since these proceedings were commenced, she was legally represented for two periods of time by two firms of solicitors.

6.More specifically, since October 2016, she had engaged Ching & Co to represent her.  The representation continued until late October this year.

7.During this one year or so, there were a flurry of activities brought about by a number of applications made by the defendant, through Ching & Co – see the decision made by His Honour Judge MK Liu on 24 March 2017 and also my decision made on 30 August 2017.

8.The documents now sought to be relied on by the defendant are documents arising out of the defendant’s related criminal trial.  They have long been in her possession.  They are voluminous.  The pile of papers now before me are over three inches thick.

9.They contain police statements and medical reports.  They are clearly material documents which the defendant and her lawyers ought to have considered for the purpose of these proceedings. 

10.I find it incredible that they would have escaped either the defendant’s or her lawyers’ notice or that they somehow got mislaid or fell through the cracks during any handover of files between the law firms.

11.To sum up, there is no good or satisfactory explanation why the documents were produced so late.  Also the defendant has totally failed to establish relevance. 

12.Furthermore, to admit the documents would necessarily mean that the assessment hearing will have to be postponed.

13.In the circumstances, the application ought to be refused.

( Discussion re costs )

14.I make an order that the plaintiff do have costs of this application.

15.The plaintiff’s solicitors having waived their right under Order 62, rule 9C(1)(b) of the Rules of the District Court, the plaintiff’s costs have been summarily assessed at $10,000, payable by the defendant on or before 18 December 2017.

16.The plaintiff’s own costs be taxed in accordance with the legal Aid Regulations.

Mr Tony Ko, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the plaintiff

The defendant appeared in person