Ng Koon Fai v. Lau Siu Hang Thomas and Another

HCSA12/2018

[2019] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 12 OF 2018

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO. SCTC 30053 OF 2016)

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REASONS FOR JUDGMENT

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1.This is the Claimant’s application (“the Leave Application”) for leave to appeal out of time on a question of law against the order of Deputy Adjudicator Ms Jo C W Siu (“the Adjudicator”) of the Small Claims Tribunal (“the Tribunal”) dated 13 December 2017, whereby the Adjudicator: (i) dismissed the Claimant’s negligence claim for damages arising out of a road traffic accident in the sum of $37,600 being the repair costs; and (ii) granted the Defendants’ counterclaim in the amount of $50,000.

2.In the hearing on 7 May 2019, I dismissed the Leave Application with costs.  I now give my reasons.

3.The first hearing was only fixed before me for 30 minutes.  By that time, Mr Leung, counsel for the Claimant, had filed a lengthy and convoluted submission addressing various issues of fact.  Since I did not have time to study the detailed submission together with all the factual statements and the trial transcript, I decided to adjourn the application for argument.  In order to help me to understand more about the issues in the intended appeal, I also directed the adjourned hearing be heard inter parte.

4.The 6 intended grounds of appeal on questions of law are set out in the Draft Amended Application for Leave to Appeal.[1]  Although the Claimant’s grounds of appeal are dressed up as points of law, it is clear that the Claimant’s challenge is in substance an appeal against the Adjudicator’s findings of fact.

5.The present proceedings arose out of a simple road traffic accident that took place at around 7:00 pm on 25 November 2015 at Castle Peak Road, Kwai Chung involving a collision between a private car driven by the 2^nd Defendant (“the Car”) and a motorcycle driven by the Claimant (“the Motorcycle”).

6.There were 3 lanes in that stretch of the road.

7.In summary, the Claimant’s case is that he was driving the Motorcycle in the first left lane (“the First Lane”).  He changed from First Lane to the middle lane (“the Second Lane”).  After driving in the Second Land for some time, he was hit in the back by the Car.

8.On the other hand, the 2^nd Defendant’s case is that he was driving the Car at the Second Lane at all material time.  Then the Motorcycle suddenly cut from the First Lane to the Second Lane without notice.  Given the short period of time, he was not able to avoid the collision.

9.It is common ground that: (i) the rear and right side of the Motorcycle was damaged, whilst the Car sustained damage to its left front fender; (ii) after the initial collision, the Motorcycle further collided with a bus on the First Lane.

10.As a result of the accident, the Claimant sustained injuries to his left elbow, which required 5 stitches to be performed.  Fortunately, he did not require hospitalisation.

11.After investigating the accident, the police did not lay any criminal charges against the Claimant or the 2^nd Defendant.

The Adjudicator’s decision

12.The Adjudicator found in favour of the Defendants’ case.  She also handed down a very detailed Reasons for Decision dated 26 June 2018 (“the Reasons”).

13.First, having considered all of the evidence and submissions before her, the Adjudicator preferred the 2^nd Defendant’s evidence to the Claimant’s evidence as being more reliable, credible and inherently probable.  In particular, the Adjudicator considered the Claimant to be an incredible and unreliable witness whose version of events was inconsistent with the undisputed documents and therefore inherently improbable.^[2]

14.Second, as to the question of who was at fault for the accident, the Adjudicator held that, on the balance of probabilities, the Claimant’s version of events was inherently improbable and accordingly rejected the same.  In other words, the Adjudicator held that the accident was caused by the Claimant’s own careless driving.^[3]

15.In reaching the above conclusion, the Adjudicator laid emphasis on the following matters:

(i)   The Claimant’s oral evidence contained various inconsistencies as regards whether or not he had switched lanes from the First to Second Lane, or whether he had all along been driving along the Second Lane on Castle Peak Road prior to the accident.^[4]

(ii)   Even if the Tribunal were to adopt the Claimant’s case that the 2^nd Defendant had been travelling at high speed (on the Claimant’s case, in excess of 100 km/hour) and the Claimant had switched to the Second Lane shortly after turning on to Castle Peak Road from Kin Chuen Street, there was still some distance until the point of collision.  The Adjudicator considered that, in such circumstances, on the Claimant’s own evidence, the Claimant ought to have had sufficient time to check his rear view mirror and become aware of the Car (if it had indeed been travelling at high speed directly behind the Motorcycle, and if indeed the Claimant had, as he contended for the first time in oral evidence, continuously checked his rear view mirror).  Yet: (i) the Claimant did not ever say in his statement that he had ever checked his rear view mirror when he was travelling on Castle Peak Road prior to the accident; and (ii) on his own evidence, the Claimant was never aware at any material time of the Car (which was supposedly travelling at high speed behind him).  These matters tended to indicate the Claimant’s version of events ought not be accepted.^[5]

(iii)   Further, had the 2^nd Defendant indeed been travelling on Castle Peak Road at more than 100 km/hour immediately prior to the accident (as the Claimant had asserted but without any supporting evidence), given the force and impact of such collision, it was difficult to see how the Claimant would have only suffered injury to his left elbow, which only required 5 stitches and did not require overnight stay at the hospital.^[6]

(iv)   Yet further, from the undisputed documents and photographs, it is clear that the accident caused damage not only to the Motorcycle’s right rear but also to its right side.  The Claimant had never explained nor addressed the damage to the Motorcycle’s right side.  On the balance of probabilities, the 2^nd Defendant’s version of events was more consistent in explaining the occurrence of the accident, i.e. that the Motorcycle had changed lanes from the First to Second Lane, which caused the collision between the Motorcycle’s right rear and the Car’s left front fender.^[7]

(v)   Still further, as to where precisely the Claimant had switched lanes on Castle Peak Road, the Adjudicator did not accept the Claimant’s oral evidence that the switching of lanes took place at the “black dot” just after the Claimant had turned onto Castle Peak Road from Kin Chuen Street, as this was inconsistent with the Claimant’s first and secondstatements made with the police.  Further and in particular, the Claimant’s oral evidence as to how many bus lengths his Motorcycle was from the bus queue up ahead was highly confusing.  This was relevant given in particular the importance of this point.  By contrast, the 2^nd Defendant’s evidence was more consistent, i.e. that the bus queue occurred at the gas station along Castle Peak Road.  This suggested that the Claimant had not switched lanes at the “black dot” as he asserted, but had actually done so further along Castle Peak Road.^[8]

(vi)   The Claimant’s evidence that the point of impact between the Motorcycle and the Car must necessarily have been to the direct rear of the Motorcycle was not accepted.  This was because the photos relied on by the Claimant only showed that the Motorcycle’s rear had been damaged – it did not necessarily follow that this was the point of impact arising from the collision (i.e. the damage could have been consequential after the point of impact).^[9]

(vii)   Lastly, there were also numerous other assertions and evidence advanced or relied on by the Claimant which were inconsistent with the existing documentary evidence, or itself problematic (i.e. internally inconsistent or improbable).  Hence, the Adjudicator treated such remaining evidence with caution.^[10]

16.Third, as to the question of whether the 2^nd Defendant was liable for contributory negligence, the Adjudicator held that, on the balance of probabilities, the 2^nd Defendant was not so liable, and that the Claimant’s careless driving was the sole cause of the accident.  The Claimant was therefore liable for the Defendants’ Counterclaim.^[11]  In particular:

(i)   The Adjudicator accepted the 2^nd Defendant’s evidence that: (a) he had been driving along a daily route to drive his grandson home; and (b) at the time of the accident, as the 2^nd Defendant was passing the gas station, his car was travelling at 60 km/hour and the 2^nd Defendant was preparing to slow down to 50 km/hour.  In any case, the Car was not travelling in excess of 100 km/hour as the Claimant alleged.^[12]

(ii)   The Adjudicator also accepted the 2^nd Defendant’s evidence that he had all along been travelling along the Second Lane on Castle Peak Road at about 60 to 70 km/hour, and that as the Car was passing the gas station, the Motorcycle suddenly switched lanes from the First to Second Lane with only half a car length between it and the bus in front of it.  The 2^nd Defendant immediately pressed his brakes but was unable to avoid the Motorcycle, thereby causing the collision.^[13]

(iii)   The Adjudicator also observed that the 2^nd Defendant’s evidence had its own inconsistencies.  However, the Adjudicator considered that, on the whole, such consistencies did not have a material impact on the disputed issues in the case, and were not irreconcilable with the undisputed documents.  Accordingly, on balance, the Adjudicator accepted the 2^nd Defendant’s evidence.

17.Fourth, as regards quantum, the Adjudicator accepted the 2^nd Defendant’s expert evidence in full, the underlying basis of which was not challenged by the Claimant, and awarded the Defendants damages in the amount of $50,000.^[14]

Legal principles governing an appeal from the Tribunal

18.An application for leave to appeal from the Tribunal to the Court of First Instance is only permissible on a question of law alone or on the ground that the claim was outside the jurisdiction of the Tribunal.[15]

19.In this respect, the claimant seeking leave to appeal must demonstrate that his grounds of appeal are arguable.[16]

20.The following principles are also relevant for the purpose of the present appeal:

(i)   It is not permissible to appeal against a finding of fact of the Tribunal unless the determination is based on a finding of fact or inference from those facts which is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors.[17]

(ii)   Even where the appeal is on law only, the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found.  If the conclusion found by the fact-finding tribunal is reasonable, that is, one within the scope for reasonable minds to differ, the appellate court cannot disturb that conclusion, even if its own preference is for a contrary conclusion.[18]

(iii)   Even if the Tribunal has erred on a point of law, it falls on the appellate court to consider whether it has some material bearing or impact on the outcome of the case, otherwise there is little point in considering any possible retrial.[19]

21.For a challenge against the finding of primary fact, the appellate court can only intervene when it is satisfied that the findings by the judge of the first instance is “plainly wrong”.[20]  The appellate court has to consider whether it was permissible for the judge below to make the findings of fact which he did in the face of the evidence as a whole.  To disturb the finding of fact, the appellate court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions.[21]

22.In China Gold Finance Ltd v CIL Holdings Ltd[22], the Court of Appeal took time to consider the recent authorities in both Hong Kong and England.  Lam VP stated:[23]

“These authorities explained the limits of an appellate court in reversing the findings of fact of the primary judge. We used the expression “primary judge” because it emphasizes the primary role of the first instance judge in the assessment of evidence and making of relevant findings of fact.  In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge.  It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

In an appeal, the Court of Appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court.  As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge.  There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other.  That would not be a ground for intervention.

Thus, in an appeal, it is not helpful if counsel and litigant (acted in person) only repeat submissions already advanced and considered by the primary judge at the trial.  The starting point should be the judgment of the primary judge and the identification of palpable errors which must be errors of such nature which warrants intervention from this court) in the judgment.  The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.”

23.Hence, the kinds of mistake which can engage an appellate court’s power of intervention are as follows:[24]

(i)   Where the trial judge has reached a conclusion on primary facts in respect of which there was no evidence to support;

(ii)   Where the trial judge has reached a conclusion on primary facts on the basis of a misunderstanding of the evidence; and

(iii)   Where the trial judge has reached a conclusion on primary facts which no reasonable judge could have reached.

Merits of the appeal

24.Although the Claimant’s application for leave to appeal is framed as an error of law, it is in substance an attack on the findings of primary fact by the Adjudicator.

25.The Claimant has advanced 6 grounds of appeal. Save as Ground 2 which relates to the application to file expert evidence in the review hearing (which I will deal with under a separate heading below), the Claimant, in the other grounds of appeal, is seeking to challenge every single finding of fact made by the Adjudicator against him under the guise of saying that the Adjudicator had made findings without evidence or failed to consider relevant evidence or misapprehended the Claimant’s evidence.  In other words, what the Claimant is actually complaining about is that the Adjudicator did not find that “the only reasonable cause of the accident is the left from of [the Car] rammed into the rear of [the Motorbike] at high speed.”

26.As a challenge to the Adjudicator’s findings of primary fact, the Claimant’s appeal can only succeed if he can show that the findings of fact were “perverse or irrational” or “made by reference to irrelevant factors or without regard to relevant factors”.  More importantly, it is incumbent on the Claimant to identify palpable errors of the sort explained by the Court of Appeal in China Gold Finance which make it necessary for this court to intervene in the matter.

27.I agree with Mr Ho, counsel for the Defendants, that the Claimant has hopelessly failed to do so for the following reasons.

28.The Claimant’s general complaint that the Adjudicator failed to take into account various relevant matters are entirely unwarranted and without foundation.  It is plain that the Adjudicator did take such matters into account.

29.The Claimant has also lodged some specific complaints against the decision of the Adjudicator which are all unmeritorious.

30.Firstly, the Claimant’s heavy reliance on the 2^nd Defendant’s alleged “admission” that the front of the Car hitting the rear of the Motorcycle is misplaced.  Contrary to the Claimant’s suggestion, the Adjudicator clearly had regard to the various inconsistencies in the 2^nd Defendant’s oral evidence as compared to the documentary evidence.[25]  Nevertheless, the Adjudicator considered, on balance, that the 2^nd Defendant’s evidence was not materially inconsistent with the key issues in the case and accepted it.

31.Secondly, the Claimant contends that the Adjudicator has misunderstood his evidence that he had all along been driving along the Second Lane prior to the accident.  This is patently incorrect.

32.It is clear from the transcript of the proceedings that the Adjudicator had expressly given the Claimant a full opportunity to explain precisely the circumstances giving rise to the accident, including in which lane he was driving prior to the accident.  The Claimant was initially adamant that he was driving on the Second Lane.  Notwithstanding his unequivocal statement that he definitely did not change lanes, after further questioning by the Adjudicator, the Claimant then changed his evidence and acknowledged that he had changed lanes from the First Lane to the Second Lane shortly after turning on to Castle Peak Road from Kin Chuen Street.  The Adjudicator then expressly put to the Claimant the fact that he had advanced two versions of his story before the Tribunal, and asked whether he was now sticking with the second version.  The Claimant agreed.

33.The Claimant was therefore fully aware of the inconsistency which was in the mind of the Adjudicator and he was given full opportunity to clarify the issue.  There is simply no basis in the complaint that the Adjudicator has misunderstood the Claimant’s evidence.  Given the importance of such evidence to the nature and cause of the accident, the Adjudicator was fully entitled to draw inferences from the fact that the Claimant’s oral testimony contained inconsistencies as set out in the Reasons.[26]

34.Thirdly, the Claimant’s attacks on “irrelevant evidence”, the “logic” or improbability of the Adjudicator’s findings, the weight (or lack thereof) given to various matters are nothing more than a complaint about the weight to be given to certain evidence in the case.  The Adjudicator clearly considered and weighed up all the evidence in arriving at her decision.  On no view can it be said that she has erred in law so as to justify intervention by the appellate court.  It would be impermissible for the Claimant to ask this court to intervene simply on the basis that it believes that it may have come to a different view on the evidence.

35.Fourthly, the Claimant’s criticisms as to the Adjudicator’s findings on credibility are entirely without basis.  The Adjudicator, being the trial judge and finder of primary fact, was fully entitled to observe the witnesses before her and make a determination as to how reliable their evidence was, when judging their demeanour, how they responded to questions, and how their oral evidence squared with the documentary evidence.  Further, the Adjudicator had the relevant principles in assessing the credibility of witness testimony firmly in mind and applied them in her reasoning.[27]  She plainly cannot be faulted for assessing the Claimant’s credibility in the way that she did.

36.In the hearing, Mr Leung also argues that it is wrong for the Adjudicator to have relied on the damages of the vehicles as shown in photographs taken after the accident to support the 2^nd Defendant’s case.  In fact, Mr Leung goes further to suggest that the photographs actually contradict the 2^nd Defendant’s version of events.  Furthermore, he submits that the 2^nd Defendant’s evidence is inconsistent because he sometimes said that the front of the Car was hit by the collision, whereas on some other occasions he said that the left side of the Car near the fender of the front wheel was hit by the collision.

37.Again, these submissions are totally without merit.  It has all along been the 2^nd Defendant’s case that the Motorcycle cut from the First Lane to the Second Lane hitting the Car near the left front wheel.  So far as the point of collision of the Car is concerned, some people would describe it as the front whilst others may say it on the side.  As I see it, the damages shown in the photographs are consistent with the 2^nd Defendant’s version of events, and there is simply no substance in Mr Leung’s submissions.

38.The present case involved a simple accident. The Adjudicator arrived at her findings on the basis of proper evidence and did not misconstrue or misapprehend any evidence.  The Claimant cannot identify any palpable errors which necessitate appellate intervention, and the decision was one that was open to the Adjudicator to make.  

The Adjudicator’s refusal to accept expert evidence at the review hearing

39.After the trial, the Claimant’s made an unsuccessful application before the Adjudicator to review her decision.

40.I agree with the Adjudicator that the Claimant was just repeating the same arguments in the review application and she was right in rejecting such application.

41.In the review hearing, the Claimant also made an application to adduce expert evidence which was refused by the Adjudicator. Again, there is no room for the court to disturb such decision.

42.It is trite that the admission of expert evidence is matter for the court’s control and discretion.  Ultimately, it is a case management decision and the appellate court will be circumspect in interfering with such decisions.[28]

43.The Adjudicator clearly had regard to the relevant principles in reaching the decision.  She correctly cited Paul William Halloran v Tsang Ming Sang[29] where DHCJ Poon, as he then was, explained that “in road traffic accidents, it is the exception rather than the rule that expert witnesses are required.”

44.Even taking into account that there was a duty of investigation on the part of the Adjudicator, her reasons for refusing the leave to adduce expert evidence are impeachable.  She held that:[30]

(i)   Dr Lo was not an accident reconstruction expert and was thus not qualified to give expert evidence in the present traffic accident case.

(ii)   In any event, she did not regard his report as having persuasive or probative value, since:

(a)   Dr Lo did not even attend the scene of the accident for investigation, but simply opined as to various theoretical matters.  The Adjudicator correctly observed that “armchair theories” without proper scientific scrutiny (by way of publication in peer-reviewed journals, etc) may have little or no probative value in court.[31]

(b)   Dr Lo had not been provided with a complete and accurate picture of the material facts and evidence in the case, which further impacted upon the probative value to be given to his report.

(c)   Expert evidence was not required to determine the key liability issues in the case (i.e. whether the Claimant changed lanes from the First to Second Lane, and if so when and in what circumstances), which were matters of factual evidence.  This was therefore not a case where there were no witnesses capable of describing what happened or assisting the Tribunal to determine what happened.[32]

45.Accordingly, the Adjudicator’s refusal to admit Dr Lo’s report cannot be criticised.

46.As there is no merit in the appeal, I dismissed the Leave Application with costs to the Defendants.

Mr Kelvin Leung, instructed by How & Co, for the Claimant (Appellant)

Mr Justin Ho, instruction by Winnie Leung & Co, for the 1^st and 2^nd Defendants (1^st and 2^nd Respondents)