Mak, Rachel Wing Nam v. Ching Kai Chung

CAMP 194/2023, [2024] HKCA 818

On Appeal From [2022] HKDC 1481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 194 OF 2023

(ON AN INTENDED APPEAL FROM DCPI NO 3510 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.These proceedings arose from a road traffic accident.  After trial, His Honour Judge Andrew Li (“Judge”) dismissed the plaintiff’s claim with indemnity costs in his judgment dated 15 December 2022[1] (“Judgment”).  The plaintiff applied to the Judge for leave to appeal against the Judgment and for stay of execution.  After a hearing, the Judge dismissed that application with costs in a decision handed down on 5 May 2023[2] (“Decision”), and further required the plaintiff’s solicitors to show cause why they should not personally pay the costs of that application on an indemnity basis.

2.Having failed to obtain leave to appeal from the Judge, the plaintiff renewed her application for leave to appeal in this court and also applied for a stay of execution of the costs orders in the Judgment and the Decision.  Subsequently, the plaintiff took out a further application in this court for leave to adduce new evidence for the intended appeal.

3.When the plaintiff filed in this court her summons for leave to appeal on 18 May 2023 and her summons for leave to adduce new evidence on 26 July 2023 and filed or lodged her affidavits, statements and submissions in support, she was acting in person, even though the logo of the solicitors firm Yu Sun Yau Mak & Lawyers appears on many of the documents she filed in person.  On 26 June 2024, Yu Sun Yau Mak & Lawyers – the same firm of solicitors that acted for the plaintiff below – filed a notice to act as solicitors for the plaintiff in this court, with a curious annotation: “limited to correspondence”. It is not clear what this means and whether a solicitor’s firm may purport to confine its role as solicitors on the record in this manner, but we will not delve into this for the purposes of this judgment.

4.Having read the materials including the parties’ written submissions lodged pursuant to the directions of the Registrar of Civil Appeals, we consider it appropriate to determine the application on the basis of written materials only pursuant to Order 59 rules 2A(5) and 14A(1) of the Rules of the High Court (Cap 4A).

Background

5.In the evening of 2 December 2016, the plaintiff was riding a motorcycle along the eastbound direction of Shek O Road.  At the same time, the defendant was also riding a motorcycle along the same road and in the same direction behind the plaintiff.  Upon reaching a deep left bend, the plaintiff lost control of her motorcycle, which crossed the double white lines that separated the traffic in the two opposite directions, and collided with a taxi on the westbound lane.  Extensive damage was caused to both vehicles and the plaintiff also suffered personal injuries (“Accident”).

6.As a result of the Accident, the plaintiff was charged with careless driving in May 2017 and convicted on her own plea on 13 July 2017 and fined HK$1,200.

7.The civil action tried by the Judge was commenced by the plaintiff against the defendant in November 2019.  The gist of the plaintiff’s claim was that the Accident, and the resultant injuries to the plaintiff, were caused by the defendant because he was following the plaintiff’s motorcycle too closely, so that the plaintiff had to accelerate to keep a safe distance and as a result lost control of her motorcycle at the bend. The defendant denied that allegation and stated that his motorcycle was over 10 metres behind the plaintiff’s prior to the Accident.  There is no dispute that there was no physical contact at all between the plaintiff’s and the defendant’s motorcycles at any material time.

The Judgment below

8.At trial, the Judge heard the evidence of the plaintiff and the defendant respectively.   On liability, the Judge had no hesitation to reject the plaintiff’s version of events, finding that it not only lacked contemporaneous records in support, but was also inherently improbable and incredible.  In particular, the Judge took into account that the plaintiff failed to raise with the police her allegation that the defendant had followed her too closely and instead told them that she had “forgotten about the circumstances of the entire accident”.  Nor did the plaintiff mention her allegation to the magistrate, even when she was asked whether there was anything else she wished to say.  The allegation against the defendant only appeared for the first time in the plaintiff’s pre-action letter dated 20 November 2019, almost 3 years after the Accident.  Further, the Judge could see no reason why the plaintiff could not have signalled the defendant to overtake her or slowed down or pulled over to allow the defendant to pass.  The Judge found the plaintiff to be evasive on questions she had no answer to and that her evidence on certain questions appeared to be rehearsed.  The Judge also drew adverse inference against the plaintiff for failing to call a colleague (Chow) who was driving a scooter along the same road and had on the plaintiff’s own evidence witnessed the Accident, having rejected the inconsistent explanations given by the plaintiff for that failure.  In contrast, the Judge found the defendant’s evidence to be supported by contemporaneous records and found him to be an honest and credible witness.  Accordingly, the Judge dismissed the plaintiff’s claim.

9.On a contingent basis, the Judge determined the quantum of damages to be $608,266 assuming the plaintiff was completely successful on liability.

Application to adduce new evidence

10.The plaintiff has by summons applied for leave to adduce two items of new evidence for the purposes of the appeal:

(1)  First, the (undated) Guide to Motorcycle and Motor Tricycle Driving Test issued by the Transport Department of Hong Kong (“Guide”).  The plaintiff wishes to rely on the guideline stated therein that road users should keep a safe distance from the vehicle in front, being at least 2 seconds.  The plaintiff contends that even if, on the defendant’s own case, he was 15 m behind her at the relevant time, that would only translate into 1.08 seconds at a speed of 50 km/h, and that the defendant had therefore failed to adhere to the 2-second rule.

(2)  Secondly, an expert report issued by Mr Chan Ching Kit dated 24 July 2023 (“Expert Report”).  Section B of the report states that without any leaning or cornering, the maximum speed for a motorcycle to enter safely into the relevant bend on Shek O Road is 55 km/h, and it may be inferred that the plaintiff skidded during the Accident since she was travelling at the speed of 55-60 km/h. Section C proceeds on the basis that just before the Accident, the plaintiff found the defendant was only 2-3 m behind her and therefore accelerated with the result that she was 15 m ahead of the defendant and travelling at a speed of 60km/h.  On this basis, it is opined that by then the plaintiff was entering the bend and had too little time to decelerate or react, and therefore lost control of her motorcycle.

11.As stated in Man Lin Heung, The Administratrix of the Estate of Man Kwai Yin also known as Man Kwai Yin v 梁根林 [2019] HKCA 846 at footnote 1, an application for leave to adduce new evidence for an appeal cannot be entertained until after leave to appeal has been granted.  A party may however rely on the proposed new evidence in support of his application for leave to appeal if he can demonstrate that it is reasonably arguable that leave to adduce such evidence would be granted by reference to the criteria in Ladd v Marshall [1954] 1 WLR 1489 at 1491.

12.The three conditions for determining whether new evidence should be admitted for the intended appeal are as follows: (1) the evidence could not have been obtained with reasonable diligence for use at the hearing below; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed or it must be apparently credible, though it need not be incontrovertible.  All three conditions must be satisfied for the new evidence to be admitted on appeal.

13.In relation to the Guide, the plaintiff has not even attempted to explain why she had not adduced it in evidence at the trial. Evidence filed by the defendant in opposition shows that a version of the Guide containing the same 2-second rule existed in May 2018.  Condition 1 is not satisfied.

14.In relation to the Expert Report, the plaintiff merely says in her 2^nd affidavit dated 25 July 2023 that it is very difficult to find a suitable expert and she only managed to find the expert who issued the Expert Report “recently”.  In her reply submissions she states that there is no recognized list of traffic accident experts in Hong Kong, that there is no “precedented way” for a litigant to find a suitable expert, that the Checklist Master did not raise the necessity of an expert, that “the pleadings [did] not alert any liability issue”, and that some technical issues only became apparent from the Judgment and the queries raised by the Judge.

15.The plaintiff has failed to elaborate on what steps were taken to find an expert before the trial.  We are not satisfied that an expert report could not have been procured with reasonable diligence before the trial.  Further, the plaintiff was legally represented at trial, and agreed to a consent order dated 5 October 2020 that “[n]o expert evidence as to liability shall be adduced in written or oral form at trial of this action”. The plaintiff’s reply submissions would suggest that it did not occur to her before the Judgment that an expert report might be relevant.  It is plain that the first condition in Ladd v Marshall is not satisfied.

16.We might add that in any event the Expert Report was based on the plaintiff’s evidence that the defendant was tailgating her before the Accident, which was rejected by the Judge.  The expert’s opinion would fall away unless that factual finding was overturned.  We are therefore not satisfied that the second condition is met.

17.The plaintiff further submits, relying on Solicitor (529/2018) v Law Society of Hong Kong (No.2) [2021] 5 HKLRD 445 at [19] to [21], that even if the conditions in Ladd v Marshall are not satisfied, the Court of Appeal still retains a residual discretion to permit new evidence to be adduced, where the interest of justice so requires.  It suffices to say that there are no exceptional circumstances in this case to justify the exercise of that residual discretion.

18.For these reasons, the plaintiff’s summons to adduce new evidence is dismissed.

Application for leave to appeal

19.The requirements applicable to an application for leave to appeal are found in section 63A(2) of the District Court Ordinance (Cap. 336) as follows:

“  (2)  Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

20.Given that the Judgment is based upon the Judge’s findings of primary facts, we should mention at the outset that there is a high threshold for the plaintiff to pass in order to challenge the Judge’s conclusions, as explained in Cheung Yuk Ying Engracia v Macgregor Isabella [2023] HKCA 749 at [28] as follows (footnotes omitted):

“ 28. It is well established that the Court of Appeal is not entitled to interfere with the trial judge’s findings of primary fact unless it is satisfied, even though it does not have the advantages of receiving the evidence at first hand, that the judge’s conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, §42. Often, as in the present case, the appellate court examines excerpts of the evidence without ‘a panoramic vista of the evidence as a whole’; it sees ‘a selected series of stills, rather than the complete film’. Even if there is a transcript of the entire trial, the impression left on the judge by witnesses ‘in their demeanour, in their manner, in their hesitation, in their nuance of their expressions, in even the turns of the eyelid … can never be reproduced in the printed page’. The facilities enjoyed by the trial judge go beyond the ability to watch the witnesses’ demeanour. Even reading the transcripts at length cannot give the appellate court the same immersion in the atmosphere of the trial. The judge has observed ‘the drift and conduct of the case’ and ‘has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal’. Accordingly, to succeed in this appeal the plaintiff had to meet the heavy burden of demonstrating that despite these advantages enjoyed by the judge but not by this court, we can nevertheless be satisfied that the conclusion of fact he has reached is not one that is reasonably open to him on the evidence.”

21.For her renewed application for leave to appeal, the plaintiff has put forward a draft notice of appeal of 23 pages with 49 paragraphs.  The grounds of appeal appear at [3] to [45], and may be summarized as follows:

(1)  The Judge was plainly wrong in law in that he omitted consideration of important and available evidence resulting in failure to carefully and clearly analyse the Accident; he relied on incomplete observation of the partial facts to hold that the defendant’s driving manner was not negligent; he gave weight to irrelevant facts on the issue of liability; there was no specific evidence to support the Judge’s findings to discredit the plaintiff’s evidence; and the Judge’s findings were against the weight of the evidence.  See [3].

(2)  The Judge was plainly wrong in law in holding that there was contemporaneous evidence against the plaintiff’s evidence.  There was no inconsistent or contradictory previous statement made by the plaintiff. See [4].

(3)  The Judge was wrong in law to draw adverse inference due to the plaintiff’s inability to call or subpoena her former colleague (Chow) to give evidence.  See [5].

(4)  The Judge erred in failing to consider various specific factors raised by the plaintiff in relation to the findings of the defendant’s driving manner and intentions.  See [6] to [21].

(5)  The Judge was wrong in law to hold that the plaintiff’s allegations against the defendant were unsupported by or directly against contemporaneous records due to the plaintiff not informing the police or the magistrate of her “true reason” and by issuing the civil claim nearly 3 years after the Accident.  The plaintiff did not provide any fact or evidence to the police or magistrate that was inconsistent with or contradictory to the evidence given by the plaintiff in this case.  The Judge was also wrong to hold that the plaintiff’s claim were “planted” ideas or “afterthoughts” and to draw adverse inference against the plaintiff for late issuance of the claim. Further, the Judge lacked professional courtesy and damaged the reputation of the legal profession by raising suspicion that there might be certain solicitors fabricating the claim for the plaintiff without valid ground or evidence in support and out of speculation or imagination.  See [22] to [24].

(6)  The Judge was wrong to find the plaintiff’s evidence to be inherently improbable or incredible, because her evidence in the main case and the amended reply were not inconsistent; the plaintiff could not have made any signal for the defendant to pass as the lane was too narrow and there were double solid white lines; the plaintiff’s oral evidence was fluent and not heavily rehearsed; and there was no specific matter or evidence to support the observation that the plaintiff was evasive, not forthcoming or too rehearsed.  See [25] to [30].

(7)  The Judge was wrong in law to draw adverse inference due to the plaintiff’s inability to call or to subpoena Chow.  There was no evidence to show that Chow could give any evidence for either party in this case, that the plaintiff failed to provide contact information of Chow to the police, or that the plaintiff was reluctant to subpoena Chow.  See [31] to [32].

(8)  The Judge was wrong in law in placing heavy weight on the defendant’s evidence, failing to properly analyse the defendant’s evidence, holding that the defendant was not driving unreasonably and dangerously, and putting weight on the defendant’s background and on the defendant having no grudge or reason against the plaintiff.  From the start and throughout the trial, the Judge had repeatedly expressed bias in favour of the defendant’s credibility based on his occupation and religion.  See [33] to [35].

(9)  The Judge was wrong in law to hold that the plaintiff had made up a story for this case after the Accident without any evidence.  The Judge also failed to consider that the defendant had been negligent by failing to “[decelerate] earlier at a reasonable and longer distance before the blind bend to provide a safe distance to allow the [plaintiff] to decelerate first before the plaintiff was to enter the blind bend”.  See [36].

(10)  The Judge was wrong in law in the analysis of the medical evidence to conclude on his findings on quantum under the awarded heads of loss.  See [37] to [42].

(11)  The Judge was wrong in law to award costs to the defendant whether on the indemnity basis or at all.  See [43].

22.The plaintiff also criticised the Judge for ordering indemnity costs against the plaintiff in the Decision without valid ground and further in requiring her previous solicitors to show cause why they should not personally bear the costs of the application for leave to appeal. See [48].

23.Before dealing with the grounds of appeal individually, we should say that overall, in relation to the grounds pertaining to liability, we agree with the Judge’s views expressed in his Decision at [14] to [18] referring to the similar intended grounds of appeal advanced before him:

“ 14. With respect, I do not think that the plaintiff has identified any errors, let alone any ‘palpable errors’, which are plainly wrong in my reasoning. The fact that a litigant does not like the outcome of a case after the trial does not necessary mean that some errors have been made by the trial judge, let alone some ‘palpable errors’. In this case, I do not agree that I have made any of those errors as identified by Mr Sun in P’s Submissions.

15. I agree with Mr Wong that despite the grounds were drafted with phrases ‘the Learned Judge was wrong in law in …’, the plaintiff has not identified any mistakes in law which I supposed to have made. Mr Sun merely repeats his observations and conclusions that he or the plaintiff wants me to find in her favour factually. Again, with respect, this is plainly insufficient for the present purpose.

16. I further agree with Mr Wong that while the plaintiff complains about my reasoning in a ‘microscopic’ manner, namely, bit by bit and paragraph by paragraph, the plaintiff fails to appreciate that the factual findings of a trial judge are made after due consideration of all aspects of the evidence, including the internal consistency of their evidence; the consistency of witnesses’ evidence with undisputed or indisputable evidence especially contemporaneous documents; the inherent likelihood or unlikelihood of an event having happened; the apparent logic of events; and the witnesses’ demeanour in court. In other words, it is a holistic and not a piecemeal approach.

17. With respect to Mr Sun, I did not reach a conclusion upon just one or two pieces of evidence or observations in this case. I have considered all aspects of the case before I come to my conclusions on liability in this action. I would like to think that I have given careful consideration and detailed analysis of the issues raised by the plaintiff and her counsel at the trial before I come to those conclusions in the 46-page Judgment, of which at least half of which was dedicated to the discussion on the issue of liability.

18. In my view, the proposed grounds are akin to making closing submissions at the hearing for the application all over again.  It is like having a second bite of the cherry when their first attempt made by counsel was unsuccessful.  In my judgment, such an approach is clearly inappropriate and a waste of the court and the parties’ time and resources.”

24.The grounds in (1) and (2) above are general allegations raised by the plaintiff that do not point out what specific errors the Judge had allegedly made.  We fail to see how the Judge’s conclusion of the facts can be said to be plainly wrong by reason of those general assertions. As such, these grounds of appeal do not have any reasonable prospects of success.

25.For the grounds in (3) and (7) above, relating to the adverse inference drawn by the Judge due to the plaintiff’s failure to call Chow to give evidence, the Judge had already explained in the Judgment at [55]–[56] his reasoning in reaching the findings premised on which the adverse inference was drawn.  Contrary to her proposed grounds of appeal, during the trial the plaintiff had actually said in her own evidence that Chow witnessed the defendant’s unreasonable behaviour and that Chow informed her that what he had seen accorded with the plaintiff’s version of events.  See Transcript at p 64J-K and p 66G-K:

「 問: 咁妳呢位朋友周生，其實佢可以目擊到被告程生呢啲咁唔合理嘅行為喎，係咪呀？

答: 係?。

…

官: 就算佢見唔到你撞架的士嗰一刻，佢一定會知道佢被被告人架電單車爬頭嗰件事，點解唔嘗試搵佢嚟喺呢個案件去支持妳嘅講法呢？

答: 因為喺2017年工作嘅期間我都有問過佢有冇--事發嘅經過喇，佢都有同我講過佢見到嘅事實同我陳述嘅一樣嘢，但當時我就再問佢，如果到其時如果我想嚟--去差人--唔係，「如果我到其時想再搵律師去跟進呢件案件嘅時候，你願唔願意作證？」佢話佢唔希望到法庭做證人?。

官: 從來冇同我講過--喺呢件事講到呢樣嘢喎，妳同唔同意？妳今日第一次講呢樣嘢？

答: 同意，同意。」

We fail to see how the Judge can be said to have been plainly wrong in his findings as alleged.  These grounds of appeal are misconceived and there are no reasonable prospects of success.

26.In the grounds summarised in (4) and (8) above, the plaintiff complains against the Judge’s findings of facts paragraph by paragraph in the Judgment in relation to the defendant’s driving manner and intentions, and against the Judge’s acceptance of the defendant’s evidence.  Thus the plaintiff asserts in paragraphs 6 – 21 of her draft notice of appeal that the Judge failed to mention in his Judgment and consider various matters. These grounds are transparently merely regurgitation of arguments run at trial and an impermissible attempt to rehearse all the points the plaintiff considers to lie in her favour.  As pointed out by this court in China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015), 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.  The focus should be on the identification of palpable errors in the judgment of such nature as to warrant intervention from this court.  A 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 will not serve the purpose. 

27.In the present case, the Judge has already set out his analysis of the plaintiff’s and the defendant’s evidence respectively in [50] to [51] and [58] to [61] of the Judgment.  In the Decision at [19(1)(a) to (f)], the Judge has further explained how the plaintiff’s criticisms against the findings of facts defy logic and the actual evidence.  We agree.

28.In relation to the plaintiff’s repeated allegation that the Judge was biased in favour of the defendant (see the ground in (8) above), the Judge dealt with this point at [21] to [23] of his Decision as follows:

“ 21. Under this draft ground of appeal, the plaintiff (with the assistance of her solicitors) boldly made a complaint that ‘throughout the trial and from the beginning of the trial and even before the D giving evidence, the Learned Judge had repeatedly expressed his bias in favour of the D 's credibility based upon his occupation and religion’.

22. It is regrettable that the plaintiff or her solicitors saw fit to make such a serious allegation against the court but yet have not make any submissions on it, whether in writing or orally, at the hearing of the application. In my judgment, it is wrong and irresponsible for the plaintiff and her solicitors to make such a serious accusation against the court without any evidence in support, least to keep totally silence on the matter when it comes to making submissions on it.

23. In reaching the conclusions that the defendant was an honest and credible witness and that his version should be accepted, I had considered all the evidence and made what I would consider as a fair, logical and just decision in light of those evidence. I did give full reasons why the defendant’s version should be accepted, including the fact that the defendant’s evidence is fully supported by the contemporaneous statement he gave to the Police which is also consistent with his witness statement and evidence in court (§58 of the Judgment); the lack of logical reason for the defendant to follow the plaintiff so closely (§59 of the Judgment); the conduct of the defendant in staying behind the scene after the accident inherently more consistent with the defendant’s version (§60 of the Judgment), my observations of the defendant after hearing live evidence (§61 of the Judgment), and the fact that the defendant did not know the plaintiff, had never met her before and had no grudges against her (§61 of the Judgment). Mr Wong was right to point out that the reference to the defendant’s occupation and religion in §61 of the Judgment was merely background information and not a reason for the court to believe the defendant. Conversely, the fact that the plaintiff has sworn in as a Christian when taking her oath is not one of the reasons I have found against her.”

In this application, the plaintiff has continued to fail to substantiate this serious allegation of bias and we have no hesitation in rejecting it.

29.Overall, we do not consider that the Judge can be said to have been plainly wrong in reaching his conclusion on the facts.  As such, these grounds of appeal are misconceived and there are no reasonable prospects of success.

30.As to the ground summarised in (5) above, the Judge had already explained his reasoning at [43] to [48] of the Judgment.  The plaintiff simply disagrees with the Judge’s observations.  As regards the Judge’s observation that the plaintiff’s claim were “planted ideas/ afterthoughts”, the judge did provide reasons, contrary to the plaintiff’s claim that the Judge did not provide any valid ground in support and it was out of speculation or imagination.  The fact is that the plaintiff never raised the allegation that the defendant was tailgating her to the police who were prosecuting her, or to the magistrate who convicted her of careless driving and had to pass a sentence on her, or even to the defendant himself, until she did so by her letter almost 3 years after the Accident.  The Judge did not suggest that the idea was planted in the plaintiff’s head by the plaintiff’s solicitors, but by “some persons who might have some legal knowledge”.  We fail to see any error as alleged by the plaintiff.  This ground of appeal is without substance and there is no reasonable prospect of success. 

31.As to the ground summarised in (6) above, the plaintiff claims that there was no specific observation or evidence to support those findings made by the Judge.  We do not think this ground can be made out.  On the contrary, the Judge gave detailed reasons at [50] to [54] of the Judgment as the bases for his findings.

32.For the ground in (9) above, the Judge explained his reasons for his conclusions at [48] and [51] respectively.  Again, it seems to us that the plaintiff simply disagrees with the Judge’s observations, but is unable to show how the findings are plainly wrong.  We fail to see any error as alleged by the plaintiff.  This ground of appeal is without substance and there are no reasonable prospects of success.

33.For the above reasons, we consider that there is no reasonable prospect of success in the intended appeal against the Judge’s conclusions on liability.

34.The ground in (10) above relates to the quantum of damages and is academic because the plaintiff cannot overturn the Judge’s holding on liability.

35.The ground set out in (11) above is all that the plaintiff has stated in her draft notice of appeal, alleging, without any elaboration, that the Judge was wrong in law to award costs to the defendant on the indemnity basis or at all.  The Judge explained the basis for ordering indemnity costs in the Judgment at [109] – [111]. Essentially he found that the plaintiff’s claim wholly lacked evidential foundation and should not have been pursued in the first place, given her own conviction for careless driving and the lack of credible evidence to support her allegations.  The Judge considered that the plaintiff had insisted on pursuing the case despite realising her allegations were unsubstantiated and were in direct contradiction to the contemporaneous records.  There is no error in the reasoning identified by the plaintiff.  This ground of appeal has no substance and no reasonable prospect of success.

36.The ground referred to in paragraph 22 above criticises the Judge’s order for the plaintiff to pay the costs of the application for leave to appeal on the indemnity basis and for her solicitors to show cause as to why they should not be personally liable for the costs.  The plaintiff has not identified any error made by the Judge, other than to say that the order is very harsh and shows an intention to “impose obstruction to [the plaintiff’s] legitimate resources in seeking justice to the judicial procedures”.  The Judge’s reasoning for his decision for the costs order was clearly explained at [36] to [37] of the Decision.  Essentially the Judge considered that it was a hopeless and groundless application for leave to appeal, and he had doubt whether the plaintiff would be in a position to pay the defendant’s costs.  There is no basis for the Court of Appeal to interfere with the exercise of the Judge’s discretion in making the order he did.  There is no basis whatsoever for the plaintiff to make the serious allegation that the Judge somehow had an intention to obstruct her pursuit of justice.  Further, the plaintiff has not explained what standing she has to challenge the order of costs against her solicitors.  This ground of appeal has no substance and no reasonable prospects of success.

37.In the absence of reasonable prospects of success in the grounds of appeal put forward, and there being no other reason in the interests of justice why the appeal should be heard, the plaintiff’s application for leave to appeal must be dismissed.

Leave for stay for execution

38.In the summons filed on 18 May 2023, the plaintiff has also applied to this court for stay of execution of the costs orders in the Judgment and the Decision pending the appeal.  As the plaintiff fails to obtain leave to appeal, the question of stay pending appeal does not arise.

Conclusion

39.For the above reasons, the plaintiff’s summonses dated 18 May 2023 and 26 July 2023 respectively are dismissed.

40.We make an order nisi that the plaintiff do pay the defendant’s costs of both summonses.  The costs order nisi will become absolute unless any party applies by summons to vary it within 14 days.

41.This court will summarily assess the costs payable on paper.  The plaintiff may file and serve a statement of objections to the defendant’s updated statement of costs dated 28 December 2023 (limited to 3 pages) within 14 days of the costs order becoming absolute.

42.As the application for leave to appeal is wholly without merit, we further order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may request that the determination be reconsidered at an oral hearing inter partes.

Written submissions by the Plaintiff herself, represented by Messrs. Yu Sun Yau Mak & Lawyers (Applicant)

Written submissions by Mr. Simon Wong, instructed by Messrs. Hastings, for the Defendant (Respondent)