Star Nice Enterprise Ltd v. Lam Ip Wah

DCCJ 3427/2022

[2025] HKDC 1179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3427 OF 2022

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JUDGMENT

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A.  Introduction

1.A traffic accident took place at midnight of 4 July 2020 (“the Accident”) involving the plaintiff’s private vehicle[1] (“the Vehicle”) driven by the third party, Mr Cheung Chun Pong, and a taxi (“the Taxi”) driven by the defendant. The plaintiff seeks to recover HK$265,000.00 from the defendant as damages for the total loss of the Vehicle, and other incidental expenses.

2.The defendant denies that he was negligent in causing the Accident. He further argues in the alternative that the plaintiff and Mr Cheung were contributorily negligent. The defendant thus commenced third party proceedings against Mr Cheung, in case the plaintiff could establish liability against him at trial.

B.  Background and the factual disputes

3.It is the plaintiff’s case that:-

3.1.  At the time of the Accident, Mr Cheung drove the Vehicle along the Connaught Road West flyover towards Causeway Bay. Mr Jason Yeung was the front seat passenger.

3.2.  Mr Cheung and Mr Yeung discovered smoke and some pungent smell coming out of the Vehicle. Mr Cheung then stopped the Vehicle on the left 1^st lane, near lamppost 27808.

3.3.  The Taxi travelled along the left 1^st lane shortly thereafter. When it approached the spot where the Vehicle stopped, it swerved to the right to avoid colliding with the Vehicle. But the front nearside of the Taxi still collided with the rear offside of the Vehicle.

3.4.  The Vehicle was pushed forward and knocked down Mr Yeung. When the Taxi continued to swerve to the right, its front nearside hit Mr Cheung, who was standing by the front offside door of the Vehicle.

3.5.  The Taxi eventually stopped on the left 3^rd lane.

4.It is pleaded in the Defence[2] that:-

4.1.  The Taxi was travelling on the flyover at 60 km/h.

4.2.  The Vehicle stopped on the left 1^st lane. The defendant saw Mr Cheung and Mr Yeung standing on the left 2^nd lane.

4.3.  The defendant did not feel, and was unaware of any impact between the Taxi and the Vehicle.

5.On 28 December 2020, the defendant was convicted on his own plea of careless driving in ESS 500497/2020 for his driving demeanour in relation to the Accident. He was fined HK$1,500.00.

6.According to the brief facts the defendant admitted to when he pleaded guilty:-

6.1.  After stopping the Vehicle on the left 1^st lane, Mr Cheung and Mr Yeung alighted from the Vehicle to check what happened. Mr Cheung turned the Vehicle’s hazard lights on.

6.2.  When the Taxi travelled along the left 1^st lane, the defendant saw the Vehicle in front of him. He decided to swerve the Taxi to the right to avoid colliding with the Vehicle. However, in the course of swerving, the front nearside of the Taxi collided with the rear offside of the Vehicle. The collision happened because of the defendant’s failure to pay due care and attention.

6.3.  The Vehicle was pushed forward and knocked Mr Yeung down. The front nearside of the Taxi hit Mr Cheung. The Taxi finally stopped on the left 3^rd lane.

6.4.  During police investigation, the defendant said he saw the Vehicle broken down on the left 1^st lane. Suddenly, 2 men came out from the offside of the Vehicle. He thus caused the Taxi to collide with the Vehicle.

7.In the defendant’s witness statement filed for the present case, he says:-

7.1.  He saw the Vehicle stopped on the left 1^st lane when the Taxi was 6-7 taxi lengths behind it. He did not know why the Vehicle stopped there. He did not smell anything pungent, nor see smoke coming out of it. He then cut into the left 2^nd lane to continue forward.

7.2.  When the Taxi was around 2 taxi lengths behind the Vehicle, Mr Cheung and Mr Yeung suddenly walked into the left 2^nd lane from the left 1^st lane. They were waving about, but the defendant did not understand what they were doing.

7.3.  The defendant thought the Taxi would knock Mr Cheung and Mr Yeung down if it continued on the left 2^nd lane. Hence, he chose to cut back into the left 1^st lane to collide with the Vehicle rather than the 2 of them. The Taxi collided with the rear offside of the Vehicle at 60 km/h; this did not push the Vehicle forward.

7.4.  He stopped the Taxi on the left 3^rd lane after the collision. Mr Cheung and Mr Yeung smelt of alcohol, speaking gibberish, and were rude to him.

8.I understand that Mr Cheung and Mr Yeung claimed damages against the defendant for the bodily injuries they sustained as a result of the Accident. Their respective claims have been settled. Therefore, the present case only concerns the plaintiff’s claim with respect to the damage sustained by the Vehicle.

C.  Findings on the factual dispute

9.Mr Simon Wong, counsel for the plaintiff, took objection with the defendant relying on his witness statement to show how the Accident happened. He submits that the matters raised in the defendant’s witness statement have not been pleaded in the Defence.

10.I allowed the defendant to rely on his witness statement de bene esse at trial. After considering the evidence, I have no hesitation to find the defendant outright lying in his witness statement, and his evidence therein should be rejected in its entirety. As such, whilst my decision here should not be taken as an example condoning such practice, I do not think it is necessary for me to decide whether the defendant’s witness statement contains evidence which departs from his pleaded case; and if so, whether he should be allowed to run a case which is unpleaded.

11.In my judgment, the defendant’s evidence, as recounted in his witness statement, on how the Accident happened is so unreasonable and implausible that he must be hiding the truth from the court. If the defendant were truthful, it is beyond me to understand how the Taxi could have ended some distance ahead of the Vehicle on the left 3^rd lane after the Accident:-

11.1.  This plainly contradicts with the defendant’s professed reason as to why he chose to collide with the Vehicle. The defendant never claims that he lost control of the Taxi. There would be a risk of knocking down Mr Cheung and Mr Yeung, allegedly waving about on the left 2^nd lane, when he steered the Taxi to the left 3^rd lane after colliding with the Vehicle on the left 1^st lane.

11.2.  It is implausible for the defendant to be stopping the Taxi ahead of the Vehicle on the left 3^rd lane after the Accident, because of the residual force of the collision. As Mr Victor Gidwani, counsel for the defendant recognizes, the Taxi stopped on the left 3^rd lane in alignment with the direction of travel. Any collision between the Vehicle and the Taxi could not have swung the Taxi to the left 3^rd lane in such manner.

12.I also find the defendant a poor witness, for the following reasons:-

12.1.  When this court inquired as to what he meant by seeing Mr Cheung and Mr Yeung waving about[3] on the left 2^nd lane, he explained that they were directing traffic to avoid the Vehicle. It is misleading for him to have first described them to be waving about if he told the truth in the witness box. His evidence at trial is also at odds with his previous evidence that he saw Mr Cheung and Mr Yeung drunk and talking gibberish. I do not think the defendant’s evidence can be safely relied upon.

12.2.  The defendant also explains that the Taxi collided with the Vehicle at 60 km/h, but the Vehicle was not pushed forward. This would be new physics if there were any truth in it. At any rate, I do not find him credible in saying that he did not slow down at the same time when he chose to collide with the Vehicle to avoid knocking down Mr Cheung and Mr Yeung.

13.On the other hand, I find Mr Cheung and Mr Yeung to be credible witnesses. I accept their evidence in full.

14.Mr Gidwani raises the point that the brief facts for ESS 500497/2020 were prepared in English, but the proceedings before the Magistrate were conducted in Punti. Therefore, it is unclear the extent to which the brief facts were translated to the defendant, and to which he agreed to them. Mr Gidwani seems to suggest that I should not simply take the defendant to have agreed to the brief facts in full when he pleaded guilty to careless driving before the Magistrate.

15.I am unable to accept Mr Gidwani’s submissions. As Mr Wong points out, the transcript records that the brief facts were read to the defendant. Normally speaking, the brief facts would be translated to the defendant by a court interpreter during the proceedings if they were prepared in a language different to the one used thereat. Furthermore, if the defendant is serious in challenging the extent to which he understood and agreed to the brief facts, he should have taken the initiative to put in evidence to show what actually transpired then. In the absence of any evidence challenging what the transcript records, the defendant must be taken to have agreed to the whole set of brief facts.

16.I also do not think, contrary to Mr Gidwani’s submissions, that any alleged inconsistency between the brief facts and the evidence gathered from the defendant during police investigation should have any bearing on my analysis. It is unsurprising that police officers may, during investigation, come across different factual allegations recounted by various witnesses. The prosecution must be assumed to have made a professional judgement on the truthfulness and accuracy of these allegations, when it decides to put forward a particular version of facts in the brief facts to support the charge laid against an individual. The fact that the prosecution decides to ignore the evidence of some of the witnesses is nothing extraordinary, and is irrelevant for the present purpose.

17.I therefore find as facts that:-

17.1.  Shortly after Mr Cheung stopping the Vehicle on the left 1^st lane of the flyover, the Taxi approached from behind on the left 1^st lane. At that time, Mr Yeung was standing in front of the Vehicle; Mr Cheung was standing by the front offside door. They were both standing within the left 1^st lane. The hazard lights of the Vehicle were turned on.

17.2.  When the Taxi wished to cut into the left 2^nd lane to avoid the Vehicle, its front nearside collided with the rear offside of the Vehicle. This pushed the Vehicle forward and knocked Mr Yeung down.

17.3.  When the Taxi continued to cut into the left 2^nd lane, its front nearside also knocked Mr Cheung down, who was standing by the front offside door of the Vehicle.

17.4.  The Taxi ultimately stopped on the left 3^rd lane ahead of the Vehicle.

D.  Liability

18.It is my judgment that the defendant was careless, and this caused the Accident. He must have failed to pay attention to the road condition ahead of him, such that it became too late for him to cut into the left 2^nd lane to avoid any collision with the Vehicle.

19.I reject Mr Gidwani’s submissions that the defendant ought not be found liable because it was the agony of the moment that he had to cause the Taxi to collide with the Vehicle. In my view, the defendant must have ample time to steer the Taxi to avoid any collision whatsoever.

20.The defendant next argues that the plaintiff should be found contributorily negligent, because it failed to keep the Vehicle in a roadworthy condition. Mr Gidwani points to the fact that the Vehicle had to be stopped in the middle of the road with the emission of smoke and pungent smell. He submits that this shows the Vehicle was not kept in good repair.

21.I find that the plaintiff was not contributorily negligent, as it is not proved on a balance of probabilities that it failed to keep the Vehicle in good repair. The burden must fall squarely on the defendant to put forward a sufficient evidential basis to make good his allegation. However, there is no evidence before me to show the true reason for the emission of smoke and pungent smell. It is not possible for this court to infer, one way or the other, as to whether the problem could be revealed and resolved upon reasonable inspection of a vehicle. Therefore, I do not think the defendant can even begin to question whether the plaintiff did what it reasonably could to maintain the Vehicle prior to the Accident. Furthermore, in the report dated 16 July 2020 and prepared by Anderson & Ashe, motor surveyors and adjusters, it was stated that the Vehicle was generally in a fairly good condition; its tyres, steering, and brakes were all in serviceable condition. There is no evidence suggesting a lack of repair.

22.The defendant’s Third Party Notice must be dismissed, in light of my findings and conclusions above. There is no basis to find Mr Cheung contributorily negligent. He did not stand on the left 2^nd lane; nor did he cause the Taxi to collide with the rear offside of the Vehicle in any other way. He did what he reasonably could in the circumstances to warn oncoming traffic of a stationary vehicle on the left 1^st lane by turning the hazard lights on. The truth was that the defendant never needed to choose to collide with the Taxi to avoid knocking Mr Cheung and Mr Yeung down, if he paid reasonable attention to the traffic condition ahead of him.

E.  Quantum

23.It is the plaintiff’s evidence that it was the first hand owner of the Vehicle since 2010. It claims that the market value of the Vehicle at the time of the Accident was HK$260,000.00. By referring to the motor survey report, it is the plaintiff’s case that the repair cost of the Vehicle (HK$280,000.00) exceeded its then value; hence there was a total loss of the Vehicle. It was sold as scrap on 22 February 2022 for HK$25,000.00.

24.In his opening, Mr Wong confirms that he does not rely on the market value opined by the motor surveyors, as that amounts to expert opinion, for which no leave to adduce expert evidence was obtained.

25.There is no dispute that it was reasonable for the plaintiff to accept that there was a total loss of the Vehicle. It is also agreed between the parties that the court should award damages representing the difference between the market value of the Vehicle as at the Accident, and its subsequent scrap value.

26.The defendant takes 2 issues with the plaintiff’s claim for the value of the Vehicle: (i) he argues that, without relying on the opinion of the motor surveyors, the plaintiff has not put forward any evidence to show the market value of the Vehicle. Hence, it should only be awarded with nominal damages; (ii) in any event, the Vehicle should be valued as an inoperable 2010 Porsche Panamera to be sold in 2020, because it already emitted pungent smell and smoke prior to the Accident.

27.First, I reject the defendant’s argument that the plaintiff should only be awarded nominal damages for the value of the Vehicle. The defendant has included in the evidence printouts dated 30 November 2022, apparently from a website specializing in trading second-hand vehicles. Offers on the same type of cars as the Vehicle ranged from the HK$88,000.00 to HK$250,000.00 (with an average of HK$161,000.00) for those manufactured in 2010; HK$118,000.00 to HK$268,000.00 (with an average of HK$186,000.00) for those manufactured in 2011; and HK$138,000.00 to HK$290,000.00 (with an average of HK$197,000.00) for those manufactured in 2012. These printouts are adduced to support the defendant’s alternative argument that the Vehicle should receive a valuation comparable to the offers. The defendant cannot complain that it is unfair for the plaintiff to rely on those offers to prove the value of the Vehicle. The defendant should have anticipated that the plaintiff might do so when he sought to put those printouts in evidence; such a way of proving the value of the Vehicle is indeed one advocated by himself.

28.Secondly, there is no evidence showing the cause of smoke and pungent smell coming out from the Vehicle at the time of the Accident; it is not known whether any, if at all, repair would be needed on one hand, or useful on the other. Since the defendant bears the burden to lead evidence on this if he seeks to argue that this is relevant to the assessment of damages, I refuse to accept Mr Gidwani’s submissions that the value of the Vehicle should be assessed as an inoperable second-hand vehicle.

29.I bear in mind that (i) no comparable is exactly the same as the Vehicle; (ii) the offer price in the printouts might not ultimately be the true value of the comparables, as there might be negotiations between the seller and a potential buyer; (iii) the Vehicle had a mileage of around 41,000 km at the time of the Accident; (iv) the value of the Vehicle should be that at the time of the Accident; and (v) its value should reflect the need to check for the source of the pungent smell and smoke. Doing the best I can, and on a broad brush basis, I assess the value of the Vehicle at the time of the Accident to be HK$200,000.00. Deducting this against the scrap value of the Vehicle, I award the plaintiff HK$175,000.00 as damages for the loss of the Vehicle.

30.The plaintiff further claims HK$4,000.00 as towing and handling fee, and HK$1,000.00 as survey fee. These are supported by receipts.

31.The defendant submits that the plaintiff would have incurred the same towing and handling fee even without the Accident. I prefer and accept Mr Wong’s submissions that, without the Accident, the towing and handling fee might be cheaper, as the Vehicle was in fact towed by a flatbed truck rather than any lighter machinery.

32.The defendant further submits that the survey fee is not recoverable because the plaintiff confirms that it no longer relies on the market value of the Vehicle opined by the motor surveyor. I reject such argument. The survey report still helps the plaintiff to establish that there was a total loss of the Vehicle. This was necessitated by the Accident. I do not agree with the defendant’s suggestion that this HK$1,000.00 should form part of the plaintiff’s costs in the present case, as this sum had to be incurred not just for these proceedings, but rather to assist the plaintiff to decide how it should mitigate its damage.

33.I award the plaintiff HK$4,000.00 as damages for the towing and handling fees, and HK$1,000.00 as damages for the survey fee.

F.  Conclusion

34.I find in favour of the plaintiff, and award HK$180,000.00 as damages. I also award interest on the damages, at 1% above HSBC prime from the date of the Accident to the date of this Judgment; and at judgment rate thereafter up to the date of payment.

35.I dismiss the Third Party Notice.

36.The defendant shall pay the costs of the plaintiff and the third party in the main action and the third party proceedings, to be taxed if not agreed on indemnity basis, with certificate for counsel. In my judgment, the defendant ought to be visited with indemnity costs for outright lying throughout; I cannot see any difference in nature between the present case and a personal injuries claim: cf Pak Siu Hin Simon v J V Fitness Limited HCPI 574/2014 (Au-Yeung J; 25 October 2017) at §§8-10.

37.The above costs order is nisi. Any party wishing to vary it should apply within 14 days of this Judgment.

38.It remains for me to thank counsel for their assistance.

Mr Simon Wong, instructed by Wan Yeung Hau & Co, for the plaintiff and the third party

Mr Victor Gidwani, instructed by Munros, for the defendant