Lee Priscilla Siok Ai v. Secretary of Justice Sued for and on behalf of Director of Highways

HCPI 129/2019

[2022] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 129 OF 2019

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BETWEEN

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Before: Hon Au-Yeung J in Court

Dates of Hearing: 25-27 April and 11 May 2022

Date of Judgment: 27 May 2022

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J U D G M E N T

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A. Introduction

1.The Plaintiff (“Ms Lee”) claims to have tripped and fallen on 22 April 2018 whilst walking on a footbridge and was about to descend a flight of stairs. She sues the Director of Highways (“Director”) in negligence and/or breach of statutory duty. She seeks damages for injuries suffered in a total sum of about $5.7 million.

2.Ms Lee did not attend trial on the first day. Only her solicitor appeared without counsel and asked for adjournment so that Ms Lee’s choice of counsel could appear, disregarding that this was a running list case. She still did not appear despite the Court standing down the hearing for her to do so. Ms Lee was penalized with indemnity costs for wasting the court’s time.

3.The trial commenced on the following day. After trial, I have no hesitation in dismissing the claim. As Ms Siu, Senior Government Counsel for the Director, has aptly put it,

(1) No accident occurred on 22 April 2018 as pleaded;

(2) The Director owed no duty of care to Ms Lee; and

(3) The evidence of Ms Lee herself exposed her as an incredible and dishonest witness who has put forth a grossly inflated claim.

B. Parties’ respective case

4.According to the statement of claim, sometime between 10 pm and 11 pm on 22 April 2018, Ms Lee was walking down the stairs of a footbridge across Harbour Road (Highway Structure Number HF 106) (“Footbridge”). Her foot got caught against the metal edge of one of the steps. She tripped and fell, landing on both knees and then to her left side, causing injuries to her knees and left hip.

5.The exact location of the Footbridge is not clear in the statement of claim or Ms Lee’s witness statement but it was established at the trial that it meant the boomerang-shaped footbridge located at the intersection of Fenwick Street, Fenwick Pier Street, Harbour Road and Convention Avenue in Wanchai. At the middle of the boomerang shape is the subject Staircase shown in Exh P2.

6.Ms Lee claims that at the time, the lighting condition at the Footbridge was poor and flickering; and that the accident was caused by the negligence and breach of statutory duty on the part of the Director.

7.As the statement of claim fails to plead any statutory provision that was breached, the only cause of action that Ms Lee can rely on is negligence. The pleaded particulars are:

(1) Failing to take any or any adequate precautions for the safety of Ms Lee while she was using the Footbridge;

(2) Exposing Ms Lee to a risk of damage or injury of which the Director knew or ought to have known;

(3) Failing to provide or maintain any or any safe and proper system of maintenance and to follow that system and/or failing to take proper care for the safety of Ms Lee;

(4) Failing to provide any, or sufficient, lighting at the Footbridge for the safe use of the Footbridge; and

(5) Failing to provide Ms Lee with a safe and serviceable Footbridge and to maintain the integrity of the footbridge network with particular emphases on safety and serviceability.

8.Apart from the allegations of insufficient lighting and, arguably, failure to maintain the Footbridge, the particulars of negligence do not give insight as to the real breach of duty on the part of the Director.

9.Both in his opening and closing submissions, Mr Charles Chan, counsel for Ms Lee, has put forth various unpleaded allegations, eg failure to attach fluorescent tape on the Metal Strip[1] which Ms Lee allegedly tripped on, difference in elevation on the surface of the Footbridge due to presence of the Metal Strip and inadequate frequency of inspection of lighting. This Court has made clear that Ms Lee is not allowed to run an unpleaded case.

10.The Director’s defences are as follows:

(1) He does not admit the occurrence of any accident. There was no metal edge installed on any of the steps of the staircase. No complaint was received by the Director in relation to the metal edge and lighting condition of the Footbridge on or around 22 April 2018.

(2) The Footbridge was (and is) a public right of way and the Director, as a highways authority, owed no duty of care in negligence to members of the public using it.

(3) If the Director is found to have owed any duty of care to Ms Lee, reasonable steps had been taken to ensure safety of the users at the Footbridge. There was a system of regular inspection of lighting and road surface. There was actual inspection of the Footbridge on 20 April 2018, during which no defect of the pavement surface was identified. There was also actual inspection of the lighting of the Footbridge on 14 April 2018 and replacement of 20 fluorescent lamps. Inspection on 5 May 2018 showed no unlit lamps found.

(4) Should the Director be found liable, he suggests that Ms Lee was contributorily negligent to the extent of 60%.

C. Issues

11.The issues disclosed on the pleadings are as follows:

(1) Whether the accident did occur;

(2) Whether the Director owed a duty of care to Ms Lee;

(3) Whether the duty of care was breached; and

(4) Quantum of damages.

D. Whether the accident did occur

12.Ms Lee was the only witness to the accident. She has never reported the accident to the police. It was only her employer who sent a letter to the Highways Department on 1 June 2018 before she commenced this action. Accordingly, there was no independent investigation as to when and how the accident occurred. Ms Lee’s credibility was thus of utmost importance.

13.In assessing credibility, the Court takes into account the inherent probabilities and logicality of a witness’s evidence. More weight is placed on documentary evidence, particularly contemporaneous ones, in the present case, the medical treatment records and reports. If a witness has lied on a few material aspects, it may also affect her overall credibility.

14.In the witness box, Ms Lee has demonstrated herself to be totally unworthy of belief because (a) she got the date of the accident wrong; and (b) she gave different versions as to how the accident occurred.

15.Insofar as the date of the accident was concerned,

(1) Ms Lee’s statement of claim, witness statement and revised statement of damages all stated the date of the accident to be 22 April 2018. Her witness statement stated that she went to the A&E Department of the Princess Margaret Hospital (“AED of PMH”) on the following day.

(2) The record of AED of PMH, however, stated that she went to PMH on 22 April 2018 at 1638 hours. The accident was recorded to have taken place on 21 April.

(3) In §1 of the joint medical expert report (“JMER”), the date of the accident was stated to be 21 April 2018.

(4) In the witness box, Ms Lee confirmed that date of accident to be 21 April 2018.

16.Accordingly, there was no accident on the pleaded date of the accident.

17.As to how the accident occurred, Ms Lee has given at least 5 versions:

(1) In her statement of claim and witness statement, she stated that “the Plaintiff was walking down the stairs of the Footbridge when suddenly the Plaintiff’s foot got caught against the metal edge of one of the steps. Suddenly the Plaintiff tripped and fell landing on both her knees. …”.

(2) In the witness box, Ms Lee stated that she tripped on a metal strip (marked green on Exh P2) and fell from the spot where her knees landed to the first step down, it was just under 1 metre (Exh P2).

(3) In response to the Court’s invitation, she suggested amending §3 of her witness statement to “I was walking down the stairs of the Footbridge when suddenly my foot got caught against the metal edge of one of the steps. Suddenly and I tripped and fell landing on both [my] knees.”.

(4) In the letter of her employer dated 1 June 2018, it was stated that there was a wet surface just before the steps and a metal step edge which was uneven. Ms Lee had stropped and fell at the staircase due to all of the contributing factors listed above.

(5) In the JMER, it was recorded that, “During the accident, she was walking on a Footbridge where the lighting was poor with flickering. She missed a step when going downstairs and fell forward. Her knees landed on the stair and the left side of her body landed on the ground.” (emphasis added)

18.Version (1) could not be true because there was no metal edge on any one of the steps, as confirmed by the photos produced. As early as in §3 of the defence filed on 25 October 2019, the Director has pointed that out to Ms Lee. Ms Lee never amended her pleadings or provided proof to the contrary.

19.Version (2) was at odds with Ms Lee’s witness statement, which she confirmed under examination-in-chief to be true and correct. Ms Lee claimed that the version in the witness box was true, whereas the statement of claim and §3 of her witness statement were wrong.

20.Ms Lee explained that she realized the mistake after she had seen the photos at page 159 and another photo taken by her husband in about December 2021 (not produced in evidence). She read her witness statement about 2 weeks before trial and told her lawyer about the mistake but there was never any discussion between them that she could correct the mistake. She thought that the witness statement had been given to the Defendant and there could not be any correction.

21.I am unable to accept Ms Lee’s explanation. It is every duty of a witness to state the truth in the witness box and she cannot just blame her lawyers. Any lawyer, if told by Ms Lee about the truth, would have asked for leave to correct the error in the examination-in-chief. As shall be seen below, version (2) is at odds with version (3) as well.

22.Further, in the witness statement of Mr Ng Ka Hung dated 27 February 2020 (§15), it was pointed out that there was no metal edge on any of the steps and any metal edge that might have caused Ms Lee to trip and fall was a Metal Strip 4 metres away from the first step down. Ms Lee must have realized that before trial.

23.In the witness box, she testified that she did not see what she had tripped on at the time because the lights were flickering and dim. She only found out after her husband came up to her location. Through using his flashlight, she found out the Metal Strip and thought that she must have tripped on it. That must be the reason why she had to give version (2).

24.Version (3) still maintained that Ms Lee was walking down the stairs, which was inconsistent with version (2) that she fell before the steps.

25.Version (4) mentioned wetness and unevenness of step edge which were not in any of Ms Lee’s own witness statement.

26.Version (5) was given to the medical experts on 4 December 2019. There could not be any other interpretation but that she was descending the Staircase when the accident happened. Not only was the way the accident happened different from the pleaded case but there was no mention of a metal edge or Metal Strip at all in the JMER, not even when the 2 experts quoted from the treatment records of Ms Lee.

27.Ms Lee’s evidence was full of inconsistencies. She was plainly making up her evidence as the case went along. I am not satisfied that an accident happened to her either on 21 or 22 April 2018 and/or that any of the 5 versions was true. This is sufficient to dismiss her case.

E. Whether the Director owed a duty of care to Ms Lee

28.To establish negligence, the plaintiff has to show that the defendant owed her a duty of care, that there was a breach of that duty, that the plaintiff suffered damage as a result, and that the damage was not being too remote: Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14, §21, Bokhary PJ.

29.The Director avers that the Footbridge was a public right of way and he owed no duty to Ms Lee. On the other hand, Mr Chan submits that as the risk was to life and limb, the questions of fairness, justice and reasonableness in imposing a duty should be borne in mind.

30.The Footbridge was a semi-enclosed structure with 2 rows of fluorescent lamps installed along the ceiling. Railings were installed on both sides of the Footbridge continuously including on both sides of the Staircase. There was no metal edge installed at any of the steps of the Staircase, but at the top landing of the Staircase, there was installed (a) a line of yellow tactile paving just before the first step down; and (b) a Metal Strip at least 4 metres away from the first step downwards (Exh P2).

31.Under section 3 of the Interpretation and General Clauses Ordinance, Cap 1, “road” and “street” are defined as:

(1) Any highway, street, road, bridge, thorough-fare, parade, square, court, alley, lane, bridle-way, footway, passage or tunnel; and

(2) Any open place, whether or not situate on land the subject of a Government lease, used or frequented by the public or to which the public have or are permitted to have access.

32.Similarly, in section 2 of the Road Traffic Ordinance, Cap 374, “road” is defined as including:

“every highway, thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which the public have access either continuously or intermittently, whether or not the same is the property of the Government… but does not include any private road …”

33.It has long been established in common law that the owner of land over which a public right of way passes is under no liability for negligent nonfeasance towards members of the public using it. A recent statement of the principle can be found in Yang Yee Man v Leung Hing Hung (No. 3) [2014] 3 HKLRD 194, §32, Bharwaney J:

“However, I would observe that, absent the enactment in Hong Kong of legislation equivalent to the Highways (Miscellaneous Provisions) Act of 1961, which abolished the immunity of highway authority for nonfeasance, the conclusion of Mr Commissioner O’Connor in 1977, that the common law rule absolving highway authority from liability for nonfeasance remains the law in Hong Kong, continues to be valid up to the present time, notwithstanding the criticisms levied against that common law rule.” (underline added)

34.The distinction between misfeasance and nonfeasance was recently re-stated in Poole BC v GN [2020] AC 780, 824F by Lord Reed DPSC (with whom the 4 other law lords agreed):

“In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply.”

35.Specifically, failure to provide sufficient lighting by a public authority has been held to be nonfeasance than misfeasance. For example,

(1) In Sheppard v Glossop Corporation [1921] 3 KB 132, the plaintiff fell over a retaining wall in the dark after the street lamps were extinguished. At p150, Atkin LJ held that:

“In this particular case the local authority did not cause the danger; it was already in existence; there was a steep place adjoining the highway when the local authority took it over. The real complaint of the plaintiff is not that they caused the danger, but that, the danger being there, if they had lighted it he would have seen and avoided it. There was no duty upon them to do so.” (underline added)

(2) In Health McCabe v Cheshire West and Chester Council, BAM Nuttall Ltd [2014] 6 WLUK 795, the claimant fell down a flight of steps on a public footpath. He alleged that the accident was caused by the Council’s failure to maintain a broken streetlight. In dismissing the claim, the Court held (at §7.1) that:

“In my view this is a nonfeasance case. The inherent danger was present as soon as the footpath was dedicated to the public when it involved a sudden drop in level. To the extent that the local authority provided, adopted or maintained the steps, these did nothing to add to the danger, indeed they reduced it significantly. The same is true of the provision of the light. Its presence was an acknowledgement that the danger existed and it was clearly an attempt to reduce the danger. The presence of the lamppost, if lit, reduced the danger and, if unlit, did nothing whatever to increase it…” (underline added)

36.In Stovin v Wise and Norfolk County Council [1996] AC 923, Lord Hoffmann, the public authority was a highway authority which had a statutory power but not a statutory duty (933H-934A) to maintain and improve highways. Lord Hoffmann (in a majority ruling) refused to impose a duty on the highway authority for failing to improve visibility of a highway (953D, 957D).

37.Mr Chan has not put forth authorities to the contrary.

38.As the Footbridge was a public right of way, applying Yang Yee Man, the Director owed no duty of care to Ms Lee.

39.Applying Poole BC v GN to the pleaded particulars of negligence set out in paragraph 7 above:

(1) Item (1) does not plead what precaution the Director could have taken but, in any case, is an allegation that the Director had not made things better.

(2) Item (2) does not specify what risk, danger or injury the Director exposed Ms Lee to but, in any case, it does not allege that the Director had made things worse for Ms Lee.

(3) Items (3) to (5) are allegations that the Director had failed to make things better.

Accordingly, even if the particulars come up to proof, it is a case of nonfeasance for which the Director is not liable.

40.In his closing submission, Mr Chan makes 2 major points.

41.Firstly, he submits that each of items (1) to (5) as set out in paragraph 7 above indicate misfeasance and not nonfeasance. His submission is based on the Director having “control” over the Footbridge.

42.With respect, those submissions are once again based on unpleaded matters and are not apparent from reading the pleaded particulars of negligence themselves. I reject those submissions.

43.Secondly, Mr Chan submits that:

(1) In Luen Hing Fat, at 42, the court stresses that on the question of fairness, justice and reasonableness in imposing a duty, that the danger involved was to life and limb has to be borne in mind. The fact of personal safety being at stake is always significant. There is no doubt that the policy considerations in favour of personal safety are naturally very powerful.

(2) Further, relevant general principles in imposing a duty of care can be gleaned in Hon Kwan v Zara Asia Limited [2021] HKCFI 2556 at §§48-70.

44.I do not question the policy considerations and principles spelt out in the 2 authorities. However, with respect to Mr Chan, the alleged duty was pleaded in eg, Luen Hing Fat and that was why the Court was able to apply the policy considerations to see if imposing the pleaded duty was justified. In the present case, no such duty was ever pleaded.

45.For the reasons given in this Section alone, the claim must be dismissed for lack of duty of care to the Plaintiff.

F. If there was a duty of care owed to Ms Lee, did the Director breach that duty?

46.I only deal with this issue for the sake of completeness.

47.The Director has called 2 witnesses from the Highways Department, Mr Gareth Tam (Engineer of Lighting Division) and Mr Ng Ka Hung (Maintenance Engineer/Structures). They testified as to the system of maintaining the road surface and lighting, and the actual inspection and repair that took place shortly before and after the alleged accident happened.

48.The Director has maintained a system of maintenance of the road network, including the Footbridge, to ensure safety of users. The Director has selected a contractor to conduct monthly routine inspection to identify any irregularity of the road network at the Footbridge. The actual inspection of the Footbridge on 20 April 2018 (1-2 days before the alleged accident) did not identify any defect of the surface.

49.The lighting at the Footbridge was operated in accordance with the Public Lighting Design Manual. The Director had engaged EMSD to conduct bi-weekly patrols, annual cleaning and replacement of all lamps once very 24 months. EMSD performed regular functional tests, annual cleaning adjustments and replacements of defective lamps, if any, at the Footbridge.

50.Just about one week before the alleged accident, EMSD replaced a total of 20 lamps on 14 April 2018 at the Footbridge to ensure that sufficient lighting was in place. EMSD actually inspected the Footbridge on 5 May 2018, during which no unlit lamps were identified.

51.Ms Lee has never filed a reply or witness statements in rebuttal.

52.Mr Chan submits that the defence evidence shows that:

(1) The Highways Department created hazard for Ms Lee by using only visual inspection and thus fell below a high standard of care.

(2) There was lack of counter-signing to internally control the quality of inspection by the independent contractor.

(3) There was lack of independent assessment and verification by the Highways Department staff other than desktop review of the so called “no defect April report”. A public authority should have checked and balanced and not just rubber stamped reports.

(4) The independent contractor’s work was not thorough and visual inspection was not reliable.

53.Again, such submission attempts to raise matters that have not been pleaded. In any case, the defence evidence discloses that the Director has tried to make things better – by ensuing better lighting and that faulty lights or road surface was repaired; he did not make things worse.

54.Visual inspection by the Director’s staff or delegates effectively steps into the shoes of a reasonable pedestrian who visually judges if lighting and road surface was defective. I cannot see any reason for Mr Chan’s complaint. Specifically, the submission that the Director failed to satisfy himself that the visual inspection and follow-up were “robust”, reliable, properly supervised and maintained is not supported by authorities.

55.In my view, Mr Chan is far from discrediting any of the defence witnesses who had no cause to lie, exaggerate or cover up. I accept their evidence.

56.For the reasons given in this Section, I am unable to find any breach of duty (if there was one) on the part of the Director. This is another reason to dismiss the claim.

G. Quantum

57.Although I do not need to consider quantum, I mention four points to illustrate Ms Lee’s lack of credibility as they are relevant to costs.

58.In his opening submission, Mr Chan confirms that Ms Lee maintains her claim on quantum for the amount of $5.7 million. Her case is based on, amongst others, (a) a subsequent accident in which a taxi allegedly hit her (“Traffic Accident”) and prevented her from returning to her pre-accident job; (b) serious pain which caused her to be wheel-chair bound; (c) sick leave period of 18 months; and (d) pre-accident monthly income of $85,000 per month. For the following reasons, there is simply no chance for her to succeed on any of such bases.

59.Firstly, to hold a defendant liable for the consequences of a subsequent accident, the plaintiff does not have to establish that the sequelae of the 1^st accident is the one and only cause of the 2^nd accident. The plaintiff only has to show that the 1^st accident is a cause in the sense of materially contributing to the 2^nd. See Ho Ka Yin v Express Security Ltd [2011] 4 HKLRD 395, §§94-99, McWalters J (as he then was).

60.It has never been pleaded that the alleged accident had in any way contributed to the Traffic Accident which occurred 7 months later on 4 December 2018.

61.In any case, the evidence put forth by Ms Lee in the claim against the taxi driver in DCPI 4106/2019 (“DC Action”) contradicts her present case.

62.The writ there was filed on 11 December 2019. The endorsement of claim and witness statement stated that Ms Lee “was walking across Tsui Ping Road and reached the double white lines in the middle of the road.” There was no mention that she was aided by anyone when crossing the road or that she had to use a stick or a wheelchair.

63.When confronted with the court documents in the DC Action, Ms Lee came up with a different version in the witness box. She claimed that her husband dropped her off on the side of Tsui Ping Road. It was her husband who crossed the road to fetch his brother. When her husband and his brother were walking towards her, she hailed the taxi. She claimed that the journey from her home to the Traffic Accident spot in Kwun Tong was not one which required her to use a wheelchair or stick. She even agreed that the endorsement of claim and witness statement did not make sense. I find that she was just making up her evidence as she went along.

64.Further, the endorsement of claim in the DC Action pleaded that the Traffic Accident injured Ms Lee’s fingers, left hand, left tibia and left foot. Those injuries, even if established, had nothing to do with the knee and hip pain as a result of her trip and fall at the Footbridge. The JMER did not find connection between the 2 sets of injuries either.

65.Secondly, Ms Lee’s pain has been exaggerated as it is not supported by any objective medical evidence.

66.Near where Ms Lee allegedly fell, the Footbridge had a flat surface. She was not in a hurry and she did not claim to be walking fast. It was hard to imagine that the trip and fall (if it did occur) would have caused serious and lasting pain.

67.Ms Lee did not go to the hospital immediately. From 22 April 2018 to 4 May 2018, she had been to the AED of PMH 4 times. Despite her assertion that immediately after the accident, she needed to walk aided and that walking was excruciatingly painful, it was only on the 4^th occasion that she first complained about difficulty in walking. She claimed that if she had to go somewhere which required her to walk a bit more than 3 to 5 minutes, she would need a wheelchair. However, as shown in the papers in the DC Action, she could walk unaided on the day of the Traffic Accident at a place some distance from her home in Tai Po Road.

68.In the witness box, Ms Lee described the pain on her knees and hip immediately after the alleged accident to be around 3.8 in a scale of 5 (5 being the most serious); around 4.8 when she got to the AED of PMH on 22 April 2018 and 2 weeks after the alleged accident; 4.8 at 6-7 months after the alleged accident in about November to December 2018; and 4.2 at the time of trial. There were good and bad days.

69.However, there was no medical proof in support of increased pain after the accident.

(1) There was no fracture detected and no complaint of lower back pain.

(2) The experts agreed that there was no lower limb neurological deficit. There was minor form of soft tissue contusion over Ms Lee’s knees and left hip as a result of the alleged accident.

(3) There was no finding in support of increased level of pain. Dr Tio (Ms Lee’s own expert) found that she would be able to walk independently.

(4) Neither expert found Ms Lee’s condition of being wheelchair-bound as being contributed to or related to the accident. She did not care to find that out by going through MRI.

(5) Dr Wong (Director’s expert) was of the opinion that Ms Lee’s present disability (if true) should be related to her old back injury in 2014 rather than the present soft tissue injury.

(6) Dr Wong found that Ms Lee could sit for the joint medical examination for almost 30 minutes without signs of distress but she refused to attempt tasks assigned to her. There were no objective signs to support the severe degree of pain.

(7) Dr Wong was of the view that her left foot injury was not severe because (i) there was no objective sign like swelling or bruising indicating the severity of symptoms; (ii) she could walk with a stick during admission and subsequent follow up at the O&T Department; (iii) she defaulted the physiotherapy arranged on 13 August 2019. The poor performance during the joint examination was likely due to her exaggeration.

70.Thirdly, record of the Senior Medical Officer in the Consultation Summary of PMH for 2 November 2018 was telling:

“Patient’s [Ms Lee’s] husband requests for writing a letter to support their application for public housing with wider flat + balcony at Cheung Sha Wan/Nam Cheong/Kwun Tong.

He shows me a letter written by Dr Sin CH (07/09/2018) stating that

‘The above named patient is currently applying for public housing and she has an injury with back sprain and persistent lower limb numbness. She is suspected to suffer from prolapse interverbral disc and this limits her walking ability. Please kindly provide her with a public housing unit with lift landing to facilitate her ambulation.’

I refer them to submit their request to MRO but he demands me to write the comment ‘right now’ at OPD that I have declined.

I oofer (sic) her FU with sick leave till 14/12/2018 but he refused.

He mentioned that he will sue me and do not want to see me again. He also requests to see other doctor ASAP.”

71.Ms Lee denied what was stated in the Consultation Summary. However, I cannot see why the Senior Medical Officer would have fabricated the record. On the other hand, given Ms Lee’s exaggeration of her pain and difficulty in walking, and lack of justification for using a wheelchair, the Consultation Summary was probably true. Ms Lee had an ulterior motive in lying about an accident having occurred and exaggerating the injuries she had suffered in order to get public housing.

72.Fourthly, Ms Lee must have lied about her income for 2017 to 2019. She was a Trade Marketing Consultant selling radiological equipment. She produced pay slips and passbook records showing receipt of full income of $85,000 per month between 15 January to 15 July 2018 and between 8 October 2018 to at least 4 January 2019. There did not appear to be evidence of income between 16 July to 7 October 2018. And yet the tax returns for 2018/2019 showed an annual income of only $63,000. Under a warning against self-incrimination, Ms Lee declined to explain the anomaly.

73.Ms Lee has never received any employee’s compensation as a result of the Accident. Despite receiving close to full income, Ms Lee claims for full loss of earnings for the 18-month sick leave period. In his closing submission, Mr Chan only sought pre-trial loss of earnings for 9.25 months only. In the DC Action, Ms Lee claims for loss of earnings from 4 December 2018 to 30 April 2020, which partly overlaps the sick leave period in the present case. She is plainly dishonest.

74.Both experts were of the opinion that Ms Lee was able to return to her pre-accident employment. According to Dr Wong, the reasonable sick leave period was 6 months. Ms Lee has not demonstrated that she had looked for other jobs. On her own evidence, she had a job offer with monthly income of $50,000 but she never explained why she did not accept it.

H. Conclusion

75.In summary, this is a case where Ms Lee has lied from liability to quantum. Her lack of chance to succeed would have been obvious from reading the statement of claim (due to lack of plea of duty of care) and her damages claim ought to have been substantially reduced after reading the JMER. Even if the accident had occurred, this claim would, at best, have been instituted in the District Court if not the Small Claims Tribunal.

76.Worse still, Ms Lee has an ulterior motive of claiming for a public housing unit under the pretense of being wheel-chair bound. This is plainly an appropriate case for the Court to penalize a dishonest plaintiff with indemnity costs and I so order. The costs shall be summarily assessed.

I. Order

77.I order as follows:

(1) The claim is dismissed.

(2) On a nisi basis, costs of this action, including all costs reserved, shall be paid by the Plaintiff to the Defendant, on indemnity basis.

(3) There shall be summary assessment of costs on paper. The Director shall file and serve a statement of costs by 17 June 2022. The Plaintiff shall file and serve her grounds of objection by 8 July 2022. The Court will give a ruling on costs in writing.

78.In view of paragraph 72 above, a copy of this judgment shall be given to the Commissioner of Inland Revenue to consider taking the appropriate action.

79.I thank counsel for their assistance.

Mr Charles Chan, instructed by Mohnani & Associates, for the Plaintiff

Ms Carmen Siu, Senior Government Counsel of the Department of Justice, for the Defendant