Cheung Ka Man v. Wong Yu Huen
Read the full judgment text of DCPI 214/2021 on BabelCite. This District Court judgment was delivered on 17 March 2023.
1. This is a decision in relation to the direction I made at the end of the hearing on the first day of trial of the above action whereby I requested the plaintiff’s solicitor to show cause as to why he should not personally be made liable to bear the costs of the action.
Cited by 5 cases · Cites 9 cases
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DCPI 214/2021 [2023] HKDC 370 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 214 OF 2021 ________________________ BETWEEN
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________________________ DECISION ________________________ INTRODUCTION 1.This is a decision in relation to the direction I made at the end of the hearing on the first day of trial of the above action whereby I requested the plaintiff’s solicitor to show cause as to why he should not personally be made liable to bear the costs of the action. 2.This was a running list case which had been warned for trial before me on 7 November 2022. 2 days had been reserved for the trial. I dismissed the plaintiff’s action, on the court’s own motion, after the plaintiff’s counsel had, half way through his opening submissions, applied to discontinue the action. 3.Having heard counsel’s submissions on costs, I directed the plaintiff’s handling solicitor to show cause as to why he should not be held personally liable for the costs wasted as a result of the aborted trial. 4.This decision is in relation to whether the plaintiff’s solicitor in charge of the case should be made liable to pay those costs in the circumstances. If so, the summarily assessed amount. BACKGROUND 5.This is a simple and straightforward personal injury (“PI”) claim arose out of a minor motor collision. The plaintiff was a housewife / part-time kindergarten teacher who was the driver of a BMW private car bearing registration number JC 3616 (“P’s Vehicle”) and the defendant, a construction worker, was the owner and driver of an Audi private car bearing registration number TT 9728 (“D’s Vehicle”). 6.At around 8:20 pm on 2 October 2018, the plaintiff was driving P’s Vehicle emerging from Victory Avenue (which is a side street) onto Waterloo Road (which is the main road). The plaintiff’s final destination on that day required her to merge onto the 3rd lane of the northbound Waterloo Road which has a total of 4 lanes. In order to do so, the plaintiff would have to enter a “yellow criss-cross lined box junction”, which is commonly referred to as a “box junction” or “yellow box” (“the Yellow Box”), that covered the 1st and 2nd lane of the northbound Waterloo Road with the length extending a little bit beyond the width of the exit of Victory Avenue only. In other words, she had to traverse onto the Yellow Box and cross over the yellow markings covering the 1st and 2nd lane in order to merge into the main road’s traffic on the 3rd lane of Waterloo Road[1]. 7.While emerging from the 2nd lane onto the 3rd lane, P’s car collided with D’s Vehicle which was travelling on the 3rd lane of northbound Waterloo Road (“the 1st Accident”). 8.As a result of the 1st Accident, the plaintiff allegedly sustained “multiple injuries to her head, neck, four limbs with stress disorder.”[2] CASE HISTORY 9.Before discussing the parties’ respective case, I would like to set out the case history to this action which climaxed with the abrupt decision of the plaintiff’s counsel Mr Patrick Lim (“Mr Lim”) in discontinuing the case half way through his opening submissions and before he called the plaintiff to give evidence in the witness box. The writ, statement of claim and treating doctors’ reports 10.The writ of summons was issued and the statement of claim (“SOC”) & statement of damages (“SOD”) in this case were filed on 25 January 2021 in which the plaintiff claims damages against the defendant for alleged negligent driving and breach of statutory duty. 11.In accordance with the requirements of Practice Direction (“PD”) 18.1, 2 treating doctors’ medical reports within the meaning of the Rules of the District Court (“RDC”), Order 18, rule 12(1C) were served at the same time with the SOC. They are: (i) Dr So Chun Kit of the Accident & Emergency Department (“A&E”) of Queen Elizabeth Hospital (“QEH”) dated 23 November 2018; and (ii) Dr Wong Kwok Kin (“Dr Wong”), a specialist in orthopaedic and traumatology (“O&T”) in private practice dated 15 November 2018 (“Dr Wong’s Report”). The plaintiff’s failure to disclose about a second accident happened to her on 15 November 2018 12.It is important to note at this juncture that nowhere in the SOC or the SOD filed by the plaintiff in this case that she or her solicitors had ever mentioned about a second traffic accident which occurred to her on 15 November 2018, ie within around 6 weeks from the 1st Accident (“the 2nd Accident”). In the 2nd Accident, she apparently had suffered from very similar if not identical injuries, ie a whiplash. On that occasion, she had consulted Dr Wong for the injuries sustained by her in that accident also. It is also important to note here that sick leaves were given to the plaintiff by Dr Wong covering the period from 2 October 2018 to 18 July 2019 on a continuous basis. It was not clear by reading those sick leave certificates as to whether they covered the injuries resulting from the 1st Accident or the 2nd Accident or both. Nonetheless, these are the sick leaves relied on by the plaintiff and her solicitors to claim for her loss and damages throughout the present proceedings and apparently for the 2nd Accident also when they negotiated with the insurer’s legal representatives of the other vehicle for a settlement. 13.Further, in the list of documents filed by the plaintiff on 12 March 2021, none of the documents disclosed by the plaintiff has mentioned anything about the 2nd Accident. 14.In addition, the plaintiff has never mentioned anything about the 2nd Accident in her witness statement filed in the present proceedings, including the injuries she had sustained and the subsequent settlement she has managed to reach with the insurer’s solicitors of the other vehicle, without having the need to issue separate proceedings for the same. 15.It was not until 10 August 2021 when the defendant’s solicitors wrote to the plaintiff’s solicitors asking for an updated report from Dr Wong that they had found out for the first time from Dr Wong’s that in fact the plaintiff had met with the 2nd Accident on 15 November 2018, which of course was slightly over 6 weeks after the occurrence of the 1st Accident only. That updated report was dated 12 October 2021 (“Dr Wong’s Updated Report”). 16.Dr Wong’s Updated Report is very significant in that, not only it has revealed that the plaintiff had sustained similar if not identical injuries to her neck, shoulders and back in the 2nd Accident, Dr Wong also stated unequivocally that the injuries sustained by her were more serious in the 2nd Accident when compared with those in the 1st Accident. 17.I think it will only be fair for me to cite Dr Wong’s Updated Report in full here in order to give a comprehensive picture of the injuries sustained by the plaintiff in the 2 separate accidents as reported and opined by her own treating doctor:-
18.For the record, Dr Wong’s Updated Report dated 12 October 2021 was only disclosed to the defendant’s solicitors on 20 October 2021 and was received by them on 21 October 2021. 19.It is clear that the defendant did not know about the 2nd Accident until Dr Wong’s Updated Report was sent to them. As in their letter dated 26 October 2021 to the plaintiff they had registered their surprise in the following manner:-
20.Resulting from the revelation contained in Dr Wong’s Updated Report, the defendant’s solicitors requested the plaintiff’s solicitors to provide them with all the “relevant police investigation documents pertaining to the second accident and the medical notes and records and medical report of the Plaintiff concerning her diagnosis and treatment for the second accident for our information”: See the defendant’s letter to the plaintiff dated 26 October 2021. 21.In the same letter, the defendant requested the plaintiff’s solicitors to disclose whether the plaintiff had made any personal injury claim against any party in relation to the 2nd Accident. If so, the plaintiff was asked to disclose the details of the same to them. 22.Further, based on the comment contained in Dr Wong’s Updated Report that the plaintiff’s condition “had become worse” after the 2nd Accident, the defendant also sought discovery of the relevant documents and information in relation to the 2nd Accident from the plaintiff’s solicitors. They also considered that it was necessary to inform the 2 orthopaedic experts to immediately withhold from finalizing their joint report pending of those information and documents pertaining to the 2nd Accident. 23.On the same day, ie 26 October 2021, the plaintiff’s solicitors replied by disclosing to the defendant: (i) the police documents; (ii) medical reports and records of QEH; and (iii) ambulance journey record in relation to the 2nd Accident. They also informed the defendant at the same time that “the common law claim regarding the second accident has been settled at the pre-action stage. No joint medial expect report has been prepared.” 24.In part of the police documents disclosed, unlike the defendant in our present case who has not been charged by the Police for any traffic offences, it has been revealed that the driver of the other vehicle involved in the 2nd Accident had been charged with and was convicted of the offence of careless driving. He was fined a sum of HK$1,300. 25.In the record of A&E of QEH, it has been reported that P’s Vehicle was at a stationary positon when the other vehicle reversed uphill into her vehicle and hit her. She suffered “neck whiplash-type injury” and her neck pain had increased. It was also remarked by the doctor at the A&E of QEH that there was bilateral UL (upper limb) numbness of the C8 / ulnar area with “pre-existing pain+ due to RTA 2/10/18) still on physio”. The X-ray of the C-spine found “kyphosis alignment was similar to the 3 October 2018 film”. The provisional diagnosis made was “sprain neck ?neurapraxia”. 26.Upon seeing the discovery on the documents in relation to the 2nd Accident that was still not complete, on 28 October 2021, the defendant asked the plaintiff to discover the plaintiff’s “pre-action letter to the tortfeasor and all the documents concerning settlement” regarding the 2nd Accident. 27.The discovery of those documents were made a few days later by the plaintiff’s solicitors on 2 November 2021. 28.In the disclosed pre-action letters to the insurer, driver and owner of the other vehicle in relation to the 2nd Accident which were all dated 9 October 2019, the plaintiff’s solicitors had apparently failed to mention anything about the 1st Accident. More importantly, they had failed to mention to the insurer and/or owner and driver of the other vehicle involved in the 2nd Accident that the plaintiff had suffered from very similar if not identical injuries in the earlier accident, ie the 1st Accident. They merely described the injuries of the plaintiff suffered in the 2nd Accident in very general terms as “neck pain and bilateral upper limb numbness.” 29.Some without prejudice negotiations obviously had taken place between the solicitors representing the insurer and the plaintiff’s solicitors as one would expect in a PI case. However, the plaintiff’s solicitors had failed to disclose the without prejudice correspondence between the parties during that negotiating process under their letter dated 2 November 2019 to the defendant. The only without prejudice letter disclosed by the plaintiff’s solicitors was one dated 27 May 2021 to the insurer’s solicitors Messrs ONC Lawyers (“ONC”) in which the plaintiff rejected an earlier offer from ONC. They stated that “(S)olely for the purposes of procuring an early settlement, our client is prepared to accept HK$200,000 (inclusive of damages, interest and our costs and disbursements) in full and final settlement of the claim herein.” [emphasis appeared in original text]. A duly signed discharge form at the above proposed settlement sum of the same date was enclosed with that letter from the plaintiff’s solicitors. It is to be noted here that the solicitor who had witnessed the signing of that discharge form by the plaintiff was one Mr Rocky Yung Pun Lok (“Mr Yung”) as an official stamp containing his full name had been affixed next to his signature. 30.ONC accepted the above offer from the plaintiff and paid the HK$200,000 to the plaintiff through her solicitors on 16 June 2021. 31.However, significantly, up to this stage, the plaintiff still refused to make discovery of the without prejudice correspondence between her solicitors and ONC. It was only upon further request from the defendant’s solicitors in the present action on 3 November 2021 that the plaintiff’s solicitors were willing to and did eventually provide the defendant with copies of their letters dated 21 January 2021 and 7 June 2021 to ONC which set out the plaintiff’s claims in relation to the 2nd Accident. 32.The without prejudice letter dated 21 January 2021 to ONC set out fully the plaintiff’s claim in relation to the 2nd Accident. In order to be fair to the plaintiff, I would reproduce the entire contents of that letter hereinbelow:- “Dear Sirs,
THE TRIAL The plaintiff’s refusal to include the documents disclosed / discovered in relation to the 2nd Accident in the trial bundle 33.As said, the trial of the present case took place before me on 7 November 2022. It was a running list case. 34.Pursuant to the Order of Master Matthew Leung dated 3 May 2022, this action was to be set down for trial before a bilingual judge in the running list, not to be warned before 1 November 2022 with an estimated length of 2 days by using the trial bundle agreed by the parties. Further, pursuant to the said Order, the plaintiff was given leave to file and serve the application to set down for trial on or before 30 September 2022. 35.The notice to set down the case for trial was filed by the plaintiff’s solicitors on 7 September 2022. 36.The case was duly placed on the warned list of the District Court on 2 November 2022, with a notice that it would be warned for trial before a judge during the week commencing on 7 November 2022. 37.On Wednesday, 2 November 2022, the notice of trial was issued by the listing office of the District Court to the parties, informing them that the trial of the case will take place before me on Monday, 7 November 2022 with 8 November 2022 reserved. 38.On the same day, this court issued directions to the parties to lodge their opening submissions and list of authorities on or before 4:00 pm on Friday, 4 November 2022. 39.On Thursday, 3 November 2022, at 11:29 am, the plaintiff lodged the trial bundle in this case with the court (which consisted of 2 separate box files, viz. Trial Bundle (A) and Trial Bundle (B)) (“the Trial Bundle”). They served the Trial Bundle on the defendant on the same day. 40.The Trial Bundle however did not contain all the latest documents disclosed by the parties since the last checklist review hearing before Master Matthew Leung on 3 May 2022. In particular, the plaintiff refused to enclose the correspondence between the parties in relation to the injuries sustained by her in the 2nd Accident and her claim in relation to the 2nd Accident. 41.This necessitated the defendant to prepare a separate bundle which was labelled as the “Defendant’s Trial Bundle” (“D’s Bundle”) that mainly contained the above documents. It was lodged with the court on Friday, 4 November 2022 at 3:32 pm and served on the plaintiff in the same afternoon. 42.Apparently what happened was that the plaintiff’s solicitors had first failed to disclose the documents in relation to the police investigations into the 1st Accident and also the correspondence between the parties in relation to the 2nd Accident; after they did, they then refused to enclose them in the Trial Bundle. This can be seen in the letter from the defendant’s solicitors to them on 24 October 2022. In the letter dated 3 November 2022, the defendant’s solicitors complained to the plaintiff’s solicitors that they had adopted the old trial bundle index dated 24 May 2022, instead of preparing the trial bundle based on the revised trial bundle index (“the Revised Index”) agreed and signed by the parties dated 5 August 2022. They asked for an explanation as to why the plaintiff’s solicitors did not adopt the Revised Index but prepared the Trial Bundle according to the old agreed bundle index instead: See defendant’s letters to the plaintiff dated 1 & 3 November 2022. 43.The plaintiff’s reply on 3 November 2022 was a rather “curious” one. Again, without being accused of quoting them out of context, I would reproduce the entire contents of that letter here:-
[emphasis added] 44.It is not clear where the plaintiff’s solicitors have got the idea from that inclusion of relevant and already discovered documents in the trial bundle need to have leave of the court. Nonetheless, the plaintiff’s refusal to include the already disclosed / discovered documents in the Trial Bundle caused the defendant’s handling solicitor to prepare an affirmation to enclose the above correspondence: See affirmation of Wu Yaqing (“Ms Wu”), the defendant’s handling solicitor, filed on 4 November 2022. 45.In the letter from the defendant to the plaintiff dated 4 November 2022 (which was enclosed as part of the correspondence included under the cover of the letter faxed to the court at 7:03 pm on 5 November 2022), the defendant has rightly taken the view that “no leave from the Court is necessary when both parties have already agreed to include the documents (which are relevant and of probative value in the Trial Bundle”. They further cited §180 of PD 18.1 where it stated “(W)here all the parties are legally represented, if a party fails or refuses to agree or cooperate in respect of the trial bundle without justification and if such failure or refusal results in any wastage of costs, that party may be visited with costs sanctions irrespective of whether or not it is the party who succeeds at trial.” They expressly reserved their client’s right to seek all costs wasted as a result. 46.The plaintiff’s solicitors replied to the above letter on 4 November 2022 which was marked “URGENT” in the following manner:-
47.On Saturday, 5 November 2022, the defendant faxed a letter to the court at 7:03 pm (which was obviously outside the court’s normal operation hours) informing the court that, subject to the court’s approval, the parties had agreed to include D’s Bundle in the Trial Bundle and were working on the pagination of the “Revised Trial Bundle” (“the Revised Trial Bundle”) before the trial. They also enclosed copies of the correspondence between the parties on 4 & 5 November 2022 in relation to the dispute on why the plaintiff had objected to include mainly documents in relation to the 2nd Accident which I have set out above. Events which took place on the first day of trial 48.At the beginning of the first day of trial on 7 November 2022, the plaintiff through her counsel Mr Lim informed the court that the Trial Bundle had finally been agreed by the parties and the plaintiff no longer insisted on the defendant having a separate D’s Bundle for the purpose of the trial. 49.I asked Mr Lim who was the handling solicitor of the plaintiff’s case in the plaintiff’s firm and was told that the handling solicitor was Mr Rocky Yung (“Mr Yung”)[3]. I asked Mr Lim to take instructions from the handling solicitor of why those documents contained in D’s Bundle could not have been included in the Trial Bundle and how did his solicitor’s conduct help to achieve the underlying objectives of the Civil Justice Reform (“CJR”). Mr Lim asked for time to take instructions from his solicitor. 50.When Mr Lim returned to court 10 minutes later with his instructing solicitor and lay client, he apologized on behalf of his solicitors for not dealing with the bundle earlier. He also wanted to hand up a letter to the court which was the same letter sent by the defendant to the court by fax on Saturday, 5 November 2022. 51.It appears that Mr Lim was not aware of the fact that the court had already received the letter by fax from the defendant’s solicitors on 5 November 2022 explaining the situation. Upon the court’s invitation for him to read and digest the contents of that letter and the correspondence attached to it, Mr Lim asked for more time to do so. Before the court adjourned the matter, he was asked by the court to find out from his instructing solicitors how their conduct in preparing the trial bundle would fit into the requirements of §§178-180 of PD18.1. I also requested the plaintiff’s solicitors to re-compile the documents and placed them in the different sections they belonged to rather than simply adding them at the back of the Trial Bundle by way of an additional section as suggested by Mr Lim. 52.When Mr Lim returned to the court room after a short adjournment with his instructing solicitor and lay client, instead of agreeing to re-compile the Trial Bundle, he accused the defendant for adding “new documents” in D’s Bundle during that morning. 53.When pointed out by the court that the defendant’s “new documents” added that morning only consisted of only 1 page while the documents refused to be included by the plaintiff in the Trial Bundle consisted of 117 pages, Mr Lim then tried to explain why in their view “the force of the impact (in the 2nd Accident) was a lot smaller than the first one”. But he admitted that the failure to disclose those documents was “a mistake” because he admitted that they had to “disclose everything.” 54.When asked by the court how would the matters complained of by the defendant in relation to the agreement to the inclusion of the documents in the Trial Bundle comply with §§175-180 of PD 18.1, Mr Lim quite rightly conceded that he was “not going to defend that”. By that I took it that Mr Lim was prepared to concede that those relevant sections of PD 18.1 do not require the parties to obtain leave from the court to include the disclosed and updated documents into the Trial Bundle. It merely requires cooperation between the parties and exercise of common sense, not being unnecessary obstructive and difficult, let alone citing the wrong practice and procedures. 55.In any event, the court adjourned the trial at 10:56 am to 2:30 pm in order to allow the plaintiff’s solicitors time to re-compile the documents in D’s Bundle into a new Revised Trial Bundle. 56.I should like to make a note at this juncture that, as Mr Gary Chung (“Mr Chung”) for the defendant has pointed out, the plaintiff had also failed to make discovery of an important statement prepared by WPC 24319 Choi Sin-Lee dated 6 November 2018. She was the investigating officer of the 1st Accident. The statement contained a detailed account of the plaintiff’s initial reaction and explanation as to the cause of the 1st Accident immediately after it had happened which is a clearly relevant and discoverable document. However, the plaintiff chose not to disclose it. This is despite the expressed confirmation by the plaintiff’s letter dated 12 October 2022 to the defendant that she had disclosed all documents obtained from the Police. 57.It was only due to the diligence of the young handling solicitor at the defendant’s firm, namely Ms Wu, that, “for the sake of prudence”, they made enquiry with the Police again and the Police then supplied them with that statement on 13 October 2022. I think the defendant’s solicitors have been very restrained to put on record to say that “(W)e are surprised to note that why your client has not disclosed or been in possession of the same.”: See letter from the defendant’s solicitors to the plaintiff’s solicitors dated 24 October 2022. I should also add here that no reply or explanation has been received by the defendant from the plaintiff of the failure in disclosing this very important document to date. The plaintiff solicitor’s failure to disclose the husband and wife relationship between him and his client 58.It was just before the adjournment of the trial to commence in the afternoon and at around 10:38 am that Mr Chung, the defendant’s counsel, has specifically drew the court’s attention to a document contained in the Trial Bundle[4], which is a tax return for individuals issued by the Inland Revenue Department for the Year of 2015/2016, where under the column of “personal particulars” the plaintiff stated the name of her spouse as “MR. YUNG, PUN LOK ROCKY”. Mr Chung wanted to know if this person is the same solicitor who is handling the case on behalf of the plaintiff in the present case who bears the same name. 59.Mr Lim replied immediately by saying that “we don’t deny that” and confirmed that the plaintiff’s handling solicitor Mr Yung was in fact “the plaintiff’s spouse”, a fact which was not known either to the defendant nor to the court up to this point. 60.I shall return to this matter under my findings below. 61.When Mr Lim and the plaintiff’s legal team returned to court at 2:30 pm to resume the case, which was after they had re-arranged the documents and re-complied the Trial Bundle in accordance with the requirements of PD 18.1, Mr Lim said they have no submissions to make and would not show cause when asked by the court why the plaintiff’s handling solicitor should not be made liable to pay for the wasted costs personally and on an indemnity basis for the adjournment. 62.The court therefore made an order to direct the plaintiff’s solicitors Mr Yung to pay the wasted costs as a result of the non-compliance of PD 18.1 in relation to the inclusion of the additional documents discovered since the Order of Master Matthew Leung dated 3 May 2022, such costs to be paid on an indemnity basis and to be summarily assessed by the court at the end of the case. The wasted costs would include the costs of the morning hearing spent in dealing with the issue, with certificate for one counsel. The defendant’s car camera record 63.I would like to pause here to briefly explain how the accidental late discovery of the defendant’s car camera record (and hence the absence of it) might have influenced the decision of the plaintiff to proceed with the case all the way to trial. 64.As explained in the defendant’s opening submissions prepared by Mr Chung, a DVD video footage of D’s Vehicle camera capturing the happening of the 1st Accident was disclosed by the defendant by way of supplemental list of documents dated 19 October 2022. The defendant’s discovery of the car camera footage was made pursuant to a request made by the plaintiff by letter dated 7 October 2022 whereby the plaintiff’s solicitors stated in the letter that they had noted from the enlarged photos and video of D’s Vehicle that he had a car camera on his windscreen at the material time. In reply thereof, the defendant in their letter dated 24 October 2022 stated that the discovery of the video footage was duly made upon their request. 65.There seems to be an innocent explanation for the late discovery of D’s Vehicle car camera footage as provided by Mr Chung in the morning of the trial just before the court adjourned to allow the plaintiff’s solicitors to re-compile the trial bundle. 66.According to Mr Chung, what happened was that at the scene of the 1st Accident, the police officer who was doing the investigation had watched the video footage through the monitor of the car camera of D’s Vehicle. The defendant then brought the memory card home to try to download the video but was unsuccessful. Hence, he just left the memory card at home and did not pass it to his solicitors during the discovery process as he thought it was defective. It was not until the plaintiff’s solicitors made the request of discovery on 7 October 2022, which of course was less than a month before the case was placed on the running list, that the defendant made discovery of the D’s Vehicle car camera video footage under their supplemental list of document s dated 19 October 2022. 67.Mr Lim and the plaintiff’s solicitors seemed to have accepted the defendant’s explanation above at the trial. At least they did not dispute the above account given by Mr Chung. The plaintiff’s arguments during the opening submissions 68.Mr Lim and his instructing solicitors returned to court in the afternoon with the re-compiled Trial Bundle. 69.He formally opened his case at 2:46 pm by relying on the written submissions he had prepared for the trial which was lodged with the court on Friday, 4 November 2022 and the 2 car cameras’ video footages. 70.In his written opening, Mr Lim had the following to say in regards to the Yellow Box:-
71.In the court’s view, which was clearly conveyed to the plaintiff’s counsel at the outset of the case, the main issues in this case on liability are: who has priority in such situation and who should give way to whom? The sub-issues would include 3 things, namely, (i) what is the correct “etiquette” in using the Yellow Box; (ii) when are vehicles allowed to enter the Yellow Box; and (iii) once enter the Yellow Box, who has priority. 72.Mr Lim agreed with the court’s above definitions on the matters that need to be determined on the issue on liability. 73.Mr Lim also referred the court to Regulations 10(1) of the Road Traffic (Traffic Control) Regulations, Cap 374G (“RTR”) during his opening submission where it states:-
74.In essence, Mr Lim conceded that sub-section (3)(a)(i) and (ii) do not apply in our case. However, Mr Lim took a very narrow and technical interpretation of Reg 10(1) and submitted that
Now, in this case -- now, here, when all the traffic is stationary, if traffic from Victory Avenue and 1st and 2nd lane of Waterloo Road Northbound before reaching the yellow box, if everybody complies with the law, then they would all wait there, right?” 75.The court did not agree with the views expressed by Mr Lim on his interpretation of the regulation. What followed was what I would describe as a “lively” exchange of views between the bench and the bar of whether the plaintiff had priority in entering the Yellow Box and/or the 3rd lane of Waterloo Road when clearly D’s Vehicle as well as a taxi travelling in front of it were still occupying it and moving forward. 76.I do not wish to go into the details of those discussions here as those matters have now become the subject matter of an intended appeal brought by the plaintiff on the “judgment” I supposed to have given on that day. A summons for leave to appeal against the “judgment”, which of course was based on the concession by the plaintiff by way of discontinuance half way through her counsel’s opening submission (but was however dismissed by the court), will be dealt with by me at a hearing now scheduled on 28 March 2023. 77.What I would like to say however at this stage is that such discussions between the bench and the bar are not uncommon in a PI case in my experience (whether as counsel or as a judge) when the court is trying to understand the basis of a claimant’s case, in particular when it questions the legal and/or the factual basis on which the claim is founded on. What is important to bear in mind is that such exchange of views was done before the parties call their witnesses to give evidence in the witness box and not during the taking of the evidence. Of course, Mr Lim who, as a very experienced counsel of over 40 years who specializes in PI cases at the Bar, is no stranger to that. 78.In any event, towards the end of the dialogue between the bench and the bar, Mr Lim conceded that he was not saying that the plaintiff “got priority in the main road”. 79.Mr Lim then went on to deal very briefly with the issue of quantum in his opening, in which he specifically referred me to the PSLA claim he had revised in his written opening, which was from the original pleaded sum of HK$650,000 under the revised statement of damages (“RSOD”) to a sum of “no less than $120,000” in his opening submissions. Mr Lim specifically stated in his written opening that “(C)ounsel does not ask for the sum set forth in the RSOD [A/74].” He relied on 5 decided cases which show similar type of whiplash injury as the plaintiff had sustained resulting from the 1st and 2nd Accidents to support that amount. In other words, the plaintiff is claiming less than 20% of what she had pleaded and maintained throughout these proceedings until the day her counsel took over the case and until her counsel’s opening submissions was lodged with the court on the Friday before the first date of the trial on the following Monday. I will come back to this matter under my findings later. 80.Then at about 3:32 pm, which was about 40 minutes after Mr Lim has opened his case, quite out of the blue and without any advanced notice, Mr Lim suddenly informed the court that he would like the court to stand down the case for 10 minutes for the purpose of him to take instructions on the “further conduct” of the case. 81.As Mr Chung for the defendant has no objection, the court acceded to the plaintiff’s request. 82.When Mr Lim returned to court with his instructing solicitor (Mr Yung) and lay client (the plaintiff) at 3:42 pm, he informed the court that he has instructions to “concede to discontinue the claim and concede to judgment brought by the defendant and the counterclaim with costs to the defendant, to be taxed if not agreed.” 83.Mr Chung said in principle he has no objection but would like to apply for costs on an indemnity basis. 84.I then indicated to the parties that the Court would like to receive written submissions from both sides on the issue of costs as I was thinking of writing a decision on the wasted costs in this case. 85.I stood down the case for 10-15 minutes for the parties to come up with a proposed timetable and draft directions for lodging those written submissions on costs. 86.When Mr Lim came back to the court room with his solicitor and lay client at 4:02 pm, when asked by the court why his solicitors should not show cause and why they should not be made personally liable for the wasted costs in this case, Mr Lim’s reply was that if the solicitors agreed to pay those costs, there is no need for them to show cause. 87.However, I reminded Mr Lim that the costs he referred to were those conceded by his solicitors in the morning for the failure to compile the Trial Bundle for the hearing. 88.Mr Lim at this juncture then informed the court that he was instructed that it was the plaintiff who had insisted to take the case to trial. 89.The court’s response to that assertion is that this sounded “particularly hollow” when the plaintiff is the handling solicitor’s spouse, and when that relationship had deliberately been concealed to both the defendant and the court by the plaintiff’s solicitors and was not disclosed until the defendant’s counsel asked for a confirmation in open court on the first day of trial. 90.At this point, I referred Mr Lim to 2 recent judgments / decisions of this court, namely, So Kam v Guildford Ltd & Anor [2021] 2 HKLRD 319 and Shahid Muhammad v Kowloon Motor Bus Co (1933) Ltd [2022] HKDC 1122 and [2022] HKDC 1410. In particular, I emphasized the fact that, as an officer of the court, the duties owed by the plaintiff’s handling solicitor to the court are very different from those owed by a lay client like the plaintiff. 91.Mr Lim repeated his instructions that the plaintiff was prepared to concede to the costs and was willing to give an undertaking to pay them on an indemnity basis. 92.However, the court considered this was a wholly different issue in that whether the plaintiff was willing to give an undertaking to pay the costs or not should not prevent the court to look into why this case had not been stopped / discontinued much earlier and why the solicitor in charge of the case should not be made liable for bearing any wasted costs in this case. 93.I adjourned the matter shortly in order to write out the directions and brief reasons for my decision in my chambers. 94.When I returned to the court room at 4:59 pm, I asked Mr Lim if there is a difference between discontinuing of a case and the dismissal of a case. Mr Lim has very fairly pointed out that discontinuance would require the leave of the court while the court could dismiss a case either on application from the parties or on its own motion[5]. 95.I said to Mr Lim that in that case I am minded to dismiss the case instead of giving leave to the plaintiff to discontinue. 96.Both Mr Lim and Mr Chung expressed no view on this. The Ruling and Order made by the Court on 7 November 2022 97.The following was the decision and the directions I made at the end of the hearing on 7 November 2022 which were read out to the parties at 5:29 pm:-
The plaintiff solicitor’s submissions 98.Pursuant to my directions, the plaintiff’s handling solicitor Mr Yung has filed an affirmation but did not give any reason as to why he considered that he should not bear the costs of the action personally and on an indemnity basis. Instead, he tried to argue why he “(T)o this date, I still believe the case on liability and quantum are both strong”. I find this rather ironic as this is a case which he had chosen to abandon / discontinue on behalf of his wife and through their counsel half way through his opening submissions. 99.Anyway, the following is the substance of his “showing of cause” as contained in his affirmation filed on 2 December 2022:-
100.The defendant’s solicitors take a “neutral stance” on the issue of whether Mr Yung should bear the costs of the action personally but disagree with the plaintiff’s solicitor assertion that the plaintiff had a strong case on liability and quantum. Ms Wu, the handling solicitor at the defendant’s firm, in her affirmation dated 21 December 2022, has, inter alia, brought to the court’s attention the following matters which of course was not privy to the court during the hearing of the trial:-
FINDINGS OF THE COURT 101.Let me start with my findings by saying that this is by far the worst case I have come across in my 10 years sitting on the bench of how a solicitor, who is supposed to be an officer of the court, had deliberately and consciously tried to hide a second accident from the court and from his opponents (in both claims). Further, he tried to grossly inflate his client’s claim to such an extent that it renders the whole exercise of pleadings and/or setting out a “without prejudice” claim to his opponent rather superfluous and meaningless. In addition, he had failed to make proper discovery of documents in relation to the other accident both in the present claim and the other claim resulting from the 2nd Accident. Last but not the least, he tried to hide the husband and wife relationship between him and the plaintiff from his opponent and the court when his financial interest may be at stake. 102.I shall discuss my findings under the following separate headings in this case. (A) Deliberate and conscious efforts on the part of the plaintiff’s solicitor to hide the 2nd Accident from the court and the defendant 103.Judging from the history of this case, there is no doubt in my mind that there was a deliberate and conscious effort on the part of the plaintiff’s handling solicitor in trying to hide the 2nd Accident from the defendant and the court in this case. Likewise, I also find that there was such a deliberate and conscious effort on the part of the plaintiff’s solicitor to hide the 1st Accident from ONC, ie the solicitors who acted for the insurer of the driver of the other vehicle in the 2nd Accident. 104.First of all, as Ms Wu from the defendant’s solicitors in her affirmation has stated, “up to the date of the trial scheduled for 7th November 2022, the plaintiff did not mention anything about the 2nd Accident in the pleadings and her witness statement”: See §29 of Wu Yaqing’s affirmation filed on 20 December 2022. 105.Since the 2 accidents happened within about 6 weeks from each other, I simply cannot imagine when the plaintiff’s solicitor issued the writ and filed the SOC & SOD in January 2021 in this case, he would not have in mind the 2nd Accident, in particular the very pertinent fact that the injuries sustained by his wife in the 2nd Accident were very similar if not identical to those sustained by her in the 1st Accident. Yet, he had, in my judgment, deliberately chosen not to mention this in the SOD which was filed on 25 January 2021 and later in the RSOD which was filed on 6 January 2022. 106.In the SOD as well as the RSOD, the plaintiff’s solicitor had pleaded the following as the “particulars of injuries, treatment and disabilities” sustained by the plaintiff in the 1st Accident:-
107.I note in particular of the plea above that the plaintiff had been attending the private clinic of Dr Wong since 4 October 2018 but without mentioning the very important fact that she had done so since 16 November 2018 for the more serious injuries (as opined by Dr Wong) sustained in the 2nd Accident. 108.What is even more disturbing is the fact that the allegations of injuries contained in the SOD and RSOD are almost identical to that contained in the without prejudice letter dated 21 January 2021 to ONC in relation to the 2nd Accident (referred to in §32 above). As an experienced solicitor of over 20 years and senior consultant of a firm which specializes in PI litigation, Mr Yung cannot in my view claim that he had forgotten about what he had set out just 4 days earlier in the without prejudice letter to ONC when he drafted the SOD which was filed on 25 January 2021. In my judgment, he also cannot claim that his client had not told him about the other accident as his client is his wife. Further, in my judgment, Mr Yung also cannot say that he did not know about the other case or accident as he was the handling solicitor in the plaintiff’s firm in both cases. It is not a case where a dishonest client has instructed 2 separate firms of solicitors to pursue 2 separate claims at the same time as we sometimes find in our courts. It is also not a case where 2 different solicitors in the same firm were handling 2 separate claims at the same time for the same client where they can claim that their left hand does not know what their right hand is doing. 109.I find Mr Yung knew exactly what he was doing. I find he was trying to recover double amount of quantum out of the miseries of the injuries suffered by his wife in the 2 separate accidents when the injuries were similar if not identical and the sick leaves given by Dr Wong had substantially overlapped with each other (save for the period between the 1st and 2nd Accidents from 2 October 2018 to 15 November 2018). 110.Based on the above objective evidence, I find Mr Yung has deliberately tried to mislead the court (and the defendant) into thinking that all the plaintiff’s injuries, treatments and disabilities pleaded in the SOC and RSOD were all resulted from one single accident, ie the 1st Accident when he knew very well that they were not. 111.§1.03 of ‘The Hong Kong Solicitors’ Guide to Professional Conduct’ Vol 1 (“The Law Society’s Guide”) states: “A solicitor is an Officer of the Court (see sections 3(2) of the Legal Practitioners Ordinance (Cap.159)), and should conduct himself appropriately.” 112.In the ‘Commentary’ that follows, it goes on to say “As an Officer of the Court, proper standards of behaviour whether in his practice or in his independent business activities are required of a solicitor as a member of an honorable profession.” 113.In ‘The Professional Conduct of Lawyers in Hong Kong’ (Michael Wilkinson & Michael Sandor; Lexis Nexis), (“The Professional Conduct of Lawyers in Hong Kong”), the authors of this leading text in Hong Kong explain what it means as an “Officer of the Court” in the following terms in [1055]-[1081] of XIII 259:-
114.I find Mr Yung had failed in his duties as an officer of the court, to deal with the 2 claims in an honest and honourable manner. (B) Totally inflated and grossly exaggerated the PSLA Claims 115.In my view, a few salient matters stood out from the contents of the without prejudice letter sent by the plaintiff’s solicitors to ONC dated 21 January 2021 in relation to the 2nd Accident. They included:
116.The awards for PSLA awards as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 have been updated in Ng Tat Kuen v Tam Che Fu [2019] HKCFI 1191 (3 May 2019; Bharwaney J):-
117.The above level of damages need to be further adjusted by the rate of inflation at the levels according to the Consumer Price Index published by the Census and Statistics Department which for 2018, 2019, 2010, 2021 and 2022 were respectively at 2.4%, 2.9%, 0.3%, 2.4% and 2%:-
118.As the without prejudice letter setting out the plaintiff’s claim was dated 21 January 2021, thus the award for “serious injury” category at that time would be somewhere between HK$560,000 and HK$755,000 only, after taking into account of the inflation in 2018, 2019 and 2020 at the above levels:
119.As is well known, “serious injury” category has been defined in Lee Ting Nam, supra, as:-
120.“Substantial injury” has been defined as:-
121.“Gross disability” has been defined as:-
122.“Disaster” category has been defined as:-
123.By any stretch of imagination, we know that the plaintiff’s injuries, whether resulting from the 2nd Accident alone, or combining with those sustained by her in the 1st Accident, do not even come anywhere close to the above definition under the “serious injury” category. 124.However, the plaintiff’s handling solicitor when setting out his wife’s claim in the without prejudice letter in January 2021 saw fit to pitch her injuries resulting from the 2nd Accident alone in the middle of the “serious injury” category at HK$600,000. But at the end of the day, he and the plaintiff were willing to accept a substantially lower sum at HK$200,000 (which very significantly in this context of this case was inclusive of “both general and special damages, interest, costs and disbursements” as stated in the letter of acceptance of the offer) in full and final settlement of the 2nd Accident when liability was not in issue at all. 125.What is perhaps more alarming if one views this with the fact that the plaintiff has originally pleaded a sum of HK$600,000 as PSLA award under its SOD dated 25 January 2021 in the present proceedings (when the writ was first issued and served with the SOC) which was then revised upwards to a sum of HK$650,000 in the RSOD dated 6 January 2022. 126.In other words, what Mr Yung is effectively claiming – without the driver or the insurer or their solicitors of the other vehicle in the 1st Accident or the 2nd Accident knowing – that the “combined” effects of his wife’s injuries sustained in the 2 accidents would entitle her to claim HK$1,350,000 as PSLA awards alone. 127.Any PI lawyer know that this amount would by definition place her injuries in the top end of the “gross disability” or bottom end of the “disaster” injury category as defined in Lee Ting Nam. 128.I find there is simply no basis -- whether legal, factual or medical -- for the plaintiff in making those wholly unrealistic and grossly exaggerated claims at all. At most, as Mr Lim has conceded in his opening submissions, the likely PSLA award that the plaintiff will be able to recover from the injuries sustained by her in the 1st Accident if she succeeds on liability is around HK$120,000 only. I am of the view that even combining the very similar if not identical injuries sustained by her in the 2nd Accident (which was opined by Dr Wong as worse than those sustained by her in the 1st Accident), the PSLA award one is talking about for both accidents will be in the region of HK$150,000 to HK$200,000 only. The fact that Mr Yung was prepared to accept a sum of HK$200,000 in full and final settlement as damages on his wife’s behalf for the 2nd Accident (which sum includes both general and special damages, interests, costs and disbursements) really speaks for itself. 129.In my experience, while it is not uncommon for a claimant or his/her solicitor or counsel to pitch his/her claims, including the PSLA award, in the pleadings a bit higher in order to give them room for negotiations or maneuver during without prejudice negotiations in a PI case, to pitch it at a level 5 times more than the likely recoverable amount (or almost 10 times when the 2 separate PSLA claims made were put together) is almost unheard of. I certainly have not come across such situation in my over 35 years’ experience in dealing with PI litigation in Hong Kong. 130.In my judgment, the only reason of making such cynical, grossly unrealistic and baseless claims for PSLA award in the 2 cases is due to greed and greed alone. Otherwise, I cannot think of any other good reason why an experienced PI solicitor would choose to do that. 131.The problem of grossly inflating such claims on PSLA is that it would not help to achieve the underlying objectives of the CJR which solicitors, as officers of the court, are under a duty to further and to promote: See Order 1A, r3 of the RDC. It will also prevent the defendant or his insurer or its legal advisers to able to properly gauge a meaningful response or make a sanctioned payment in court. It will only lead to unnecessary wastage of costs, time and efforts for all parties concerned and wasting of the limited judicial resources. (C) Failure to make proper discovery of documents in relation to the 2nd Accident in the present proceedings 132.It has also been said that in civil cases, the courts have imposed an unusually high duty upon solicitors as officers of the court in respect of their duty to assist in the discovery process: See [404] of XI 67A of The Professional Conduct of Lawyers in Hong Kong; and also Woods v Martins Bank Ltd [1959] 1 QB 55 and Rockwell Machine Tool Co Ltd v EP Barrus (Concessionaries) Ltd [1968 1 WLR 693 at 694. 133.Such duties to make full discovery will include the duty to check that no relevant documents have been omitted by the client in complying with his duty to make discovery: see Myers v Elman [1940] AC 282 (HL) at 322. 134.It is also the solicitor’s duty to ensure that full discovery is made in good time before the trial. 135.In this case, judging from the history and events set out above, it is clear to me that had it not been for the “accidental” discovery of the 2nd Accident when the defendant’s solicitors asked for an update of Dr Wong’s Report, the plaintiff’s solicitors had no intention to disclose or make discovery of any documents in relation to the 2nd Accident at all. Even when they did so, it was done in a piecemeal fashion and in a most reluctant manner. The last minute attempts to stop the defendant to include those discovered documents in the 2nd Accident in the Trial Bundle based on some absurd grounds is another illustration of how low the plaintiff’s solicitor was prepared to go in order to stop the court from seeing those documents at the trial. 136.In my view, there is a clear breach of such a duty to the court on the part of the plaintiff’s solicitors in making full and timely discovery of the documents in relation to the 2nd Accident in this case. (D) Failing to disclose the husband and wife relationship 137.Let me start by saying that as far as I am aware, there exists no rule to prohibit a solicitor to act for his spouse, whether in a civil or in a criminal case. 138.In the case of Chan Wai Shan v Ocean Park Corporation [2009] I-IKCU
139.However, it has been clearly stated in The Law Society’s Guide that a solicitor must not place himself in a position where his own interests conflict or are likely to conflict with his duty to his client: See Solicitors’ Guide to Professional Conduct Vol.1 §7.02 where it states:-
140.Commentary 2 of that passage provided that:-
141.In this case, I think it is clear that his relationship with the plaintiff and any financial interest that he may have in the case, whether by way of damages going to be received by his wife or costs to be received by him in his capacity as solicitor in the case, may have inhibit his ability to advise his client/wife properly and impartially. 142.Although not required by the rules, I think it is always a good policy and/or practice for a solicitor to think carefully before he/she decides whether it is prudent for him/her to act for his/her spouse or partner, particularly in a PI case where personal injury and monetory issues are involved. If he/she does so, I think it would be wise for them to disclose such a relationship to his opponent and/or to the court. CONCLUSION 143.In conclusion, based on the objective evidence unfolded in this case, with much regret, I find:-
Costs 144.Regrettably, based on the above findings, I come to the conclusion that this whole action was founded out of greed and dishonesty. Had the plaintiff’s solicitor acted honestly and according to the law, I am sure that this matter would have been able to be disposed of without going to trial. Therefore, I find the costs of whole action was wasted as a result of the conduct of the plaintiff’s handling solicitor. Since he still refuses to accept any responsibility when given the opportunity to show cause, I will have to assume that he still thinks that he had done nothing wrong in this case. And as the defendant takes a neutral stance on this matter, the court will have to make its own decision on the wasted costs in this case. 145.Based on my findings above, I consider that the plaintiff’s solicitor has failed to show cause of why he should not be made personally liable and pay for the costs of this action, including (i) the costs wasted as a result of the non-compliance of PD 18.1 in regard of the preparation of the Trail Bundle in this case; (ii) costs of the action; and (iii) costs of the counterclaim, on an indemnity basis and to be paid forthwith. I so order that he shall be made personally liable for those costs and pay them on an indemnity basis, such costs to be summarily assessed by this court and to be paid forthwith. 146.Having studied carefully the 3 separate statements of costs for the above 3 different set of costs lodged by the defendant’s solicitors and the 3 statements of objections lodged by the plaintiff prepared by a law costs draftsman, I would hereby summarily assess the above costs respectively at HK$90,000, HK$690,000 and HK$20,000, making such costs to be payable by the plaintiff’s solicitor to the defendant at a total sum of HK$800,000. 147.I further order that the summarily assessed costs to be paid by Mr Yung personally and within 14 days from the handing down of this decision. FOLLOW-UP ACTIONS TO BE TAKEN 148.As said, this is by far the worst case I have come across in my career as a judge of how a solicitor had misconducted himself in a case. I am going to direct my clerk to send a copy of this decision, together with the transcript of the proceedings of the hearing on 7 November 2022, to The Law Society of Hong Kong, for them to investigate into whether any breach of professional conduct under the ‘The Law Society’s Guide’ might have been committed by the plaintiff’s solicitor in the circumstances of this case. 149.If my findings above are right (of which I have no reason to think why they are not), then such appalling conduct on the part of an officer of the court must be stopped in our profession, in particular in PI litigation, in order to preserve the integrity of our system and to maintain the rule of law. 150.Lastly, this case reminds me of a famous passage of Lord Denning in Gouriet v Union of Post Office Workers and Others [1977] 2 WLR 310 at 331: “To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you ever so high, the law is above you.” 151.I hope this case will act as a reminder for all of us who are in authority in the legal profession, whether as solicitors, counsel or judges, that we are all under the law and nobody is above it.
Mr Patrick D Lim, instructed by Messrs B Mak & Co., for the plaintiff Mr Gary Chung Ka Hong, instructed by Messrs Cheng, Yeung & Co, for the defendant [1] See Police sketch at [A/195-6]. [2] See statement of claim at §3(d) at [A/8]. [3] For the record, I had never come across Mr Yung nor heard of his name in my professional life at all, whether when I was in private practice or while sitting on the Bench. [4] See [B/214]. [5] For a comprehensive review of the law and authorities on the difference between the discontinuance and dismissal of an action, see the recent case of Chiu Kei Leung (趙基樑) v Chui Deon Yau Han (徐幼嫻) & MTR Corporation Limited (香港鐵路有限公司) [2023] HKDC 134; DCCJ 5510 of 2018. (3 February 2023; HH Judge Jonathan Wong). |
1775 at §3, Yam J stated the following:-Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCPI 214/2021