Parveen Tahira and on behalf of the Dependants of Muhammad Shahzad, Deceased v. Paul Y. - Seli Joint Venture

DCEC 493/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 493 OF 2000

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IN THE MATTER OF AN APPLICATION BETWEEN:

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ECC/LA 13300/2000 (DP22)
                                                                             DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN:

[Consolidated by Order of H.H. Judge Carlson dated 28th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18th day of March 2005]

Coram: Deputy District Judge K.W. Wong in Chambers (open to public)

Date of hearing: 2^nd January 2007

Date of Ruling: 9^th February 2007

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RULING

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1.The respective Applicants of these two Employees Compensation proceedings (DCEC 493/2000 is referred to as “1^st Application” and Parveen Tahira the “1st Applicant” while DCEC 30/2001 is referred to as “2^nd Application” and Atiq-ur-Rehman the “2nd Applicant”) belonging to two unrelated families claimed to be the dependants of the Deceased. On 5^th July 2006 I handed down a written judgment resolving the identity issue in favour of the 2nd Applicant with certain nisi costs orders after a 16-day trial. After my judgment the two Applicants made the following three applications to the Court:

i) the 2nd Applicant’s application by way of letter dated 14th July 2006 from his solicitors, Burke, Fung & Li (“BFL”) to vary certain costs orders of my said judgment (“costs variation application”);

ii) the 1st Applicant’s applications by way of two summonses respectively dated 31st August and 6th September 2006 in the two proceedings herein for leave to appeal against my said judgment (“leave to appeal application”); and

iii) the 2nd Applicant’s application by way of summons dated 21st December 2006 against the 1st Applicant for security for costs of the appeal, if leave to appeal is granted to the 1st Applicant (“security for costs application”).

Costs Variation Application

2.By the said letter, BFL on behalf of the 2nd Applicant wrote to my clerk copied to the 1st Applicant and the Respondent stating that the 2nd Applicant wished to be heard in relation to the issue of costs, and in particular, my orders which were incorporated as paragraphs 2, 6 and 7 of the sealed judgment respectively as follows:

i) judgment be entered for the 2nd Applicant together with the dependents named in the 2nd Application (DCEC 30/2001) against the Respondent for the sum of $1,528,800.00 under the Employees’ Compensation Ordinance (“ECO”), Cap 282 plus interest at half judgment rate from the date of accident to the date of judgment, plus costs of the 2nd Application against the Respondent up to and inclusive of 18th November 2005, the date on which the Respondent made the unconditional open offer to the successful Applicant;

ii) there be an order nisi that the Applicant in the 1st Application (DCEC 493/2000) do pay all costs of and occasioned by the Applicant in the 2nd Application (DCEC 30/2001) in proving the identity of the Deceased, including the costs of this trial, on an indemnity basis, together with certificate for counsel, to be taxed if not agreed; and

iii) there be an order nisi that the 2nd Applicant’s own costs in the 2nd Application and incurred in proving the identity of the Deceased vis-à-vis the 1st Application be taxed in accordance with Legal Aid Regulations.

3.The 2nd Applicant did not specify in the said letter to what extent the said costs orders were to be varied. Mr. John Wright, counsel for the 2nd Applicant submitted that since the 1st Applicant did not have any identifiable income and assets, any order against the 1st Applicant for costs would very likely remain unsatisfied at the end of the day. As such, on grounds to be set out in the following paragraphs the 2nd Applicant sought to hold the Respondent liable for all cost incurred by the 2nd Applicant in proving his identity vis-à-vis the 1st Applicant. Furthermore, Mr. Wright submitted the costs between the 2nd Applicant and the Respondent should be on a common fund basis.

4.The above three costs orders affect the 1^st Applicant and the Respondent. Miss Angela Gwilt, counsel for the 1st Applicant informed the court that she had no instruction to oppose or support any variation of costs order. Mr. Ashok Sakhrani, counsel for the Respondent submitted that the Respondent did not seek to vary these costs orders. On the other hand, while the Respondent had no objection to the costs between the 2nd Applicant and the Respondent being on common fund basis, he submitted that there was no basis the Respondent be held liable for costs of the 1st Applicant simply because the latter had no means to satisfy the costs order.

5.At the hearing I invited Mr. Wright to draw up his proposed costs orders for consideration of the Respondent. The following proposed orders were later submitted to the Court by Mr. Wright:

i) all costs of the action up to 18th November 2005 including the costs incurred by the 2nd Applicant as against the 1st Applicant and the costs incurred by the 2nd Applicant as against the Respondent be paid by the Respondent to the 2nd Applicant, the costs to be paid on common fund basis, to be taxed in default of agreement;

ii) all costs incurred by the 2nd Applicant against the Respondent after the date of judgment up to and including the date of the order to be made herein, be paid by the Respondent to the 2nd Applicant on a common fund basis to be taxed in default of agreement;

iii) all costs of and incidental to the 2nd Applicant’s application for approval of apportionment and payment out, be paid [by the Respondent] on a common fund basis, to be taxed if not agreed;

iv) the Applicant in the 1st Application (DCEC 493/20000) do pay all costs of and occasioned by the Applicant in the 2nd Application (DCEC 30/2001) [from and inclusive of 19th November 2005 onward to the date of judgment] [[of the trial]] on an indemnity basis, together with certificate for counsel, to be taxed if not agreed.

6.The words in square brackets are added by me after clarification with Mr. Wright. The phrase in double square brackets was the original drafting of Mr. Wright which I have difficulty to understand. Despite my clarification I still have difficulty to understand how the proposed order in paragraph 5(iv) above improves my costs order repeated in paragraph 2(ii) above. Mr. Sakhrani agreed to paragraphs 5(ii) to (iv) but opposed paragraph 5(i) above.

7.Mr. Wright’s grounds for holding the Respondent liable for the 2nd Applicant’s costs in proving identity can be summarized as follows:

i) it was not until 18th November 2005 that the Respondent admitted the Deceased’s death arising out of and in the course of employment. Prior to that the Respondent put the 2nd Applicant to strict proof of each and every relevant facts. As such the 2nd Applicant was forced to prove all facts including those relating to the Deceased’s identity. The Respondent allowed the matter to drag on and therefore had to pay for the costs incurred; and

ii) the claim for compensation under the present two claims were under the old scheme of the ECO where a dependent’s claim can be one of total or partial dependency. The 2nd Applicant’s claim was based on total dependency whereas that for the 1st Applicant was partial dependency, which if successful, would end up in the Respondent paying less. The Respondent gained advantage by betting on two horses with a hope that Respondent could save a lot of money if the winner was the 1st Applicant. That was unreasonable and the Respondent should have made payment into Court subject to resolution of the Deceased’s identity.

8.I have listened carefully to Mr. Wright’s submission and the documents which he has taken me through. With due respect I really do not consider Mr. Wright’s submission attractive and am not persuaded.

9.Firstly, the fact that the 1^st Applicant has no means to satisfy the costs ordered against her is no reason for holding the Respondent liable for that part of the costs.

10.Secondly, the part of the costs in question is the costs of and occasioned by the 2nd Applicant in proving the Deceased’s identity and not costs of the 2nd Application. If there is any delay in the admission of liability by the Respondent in the 2nd Application whereby extra costs are incurred, no doubt it is fair to hold the Respondent liable for these extra costs together with interest on the compensation, and I have already so ordered. Mr. Sakhrani in fact also conceded on this ground in his submission. However, payment of costs incurred in the identity issue is a totally different matter.

11.Thirdly, as pointed out by counsel for the Respondent, although the Respondent put the 2nd Applicant to strict proof of everything in the pleadings, the Respondent has basically admitted each and every element required to be proved under section 5 of the ECO. It is obvious from the Form 2 filed by the Respondent with the Labour Department that the name of the Deceased, his employment relationship with the Respondent, the date of his accident, the fact that the accident occurred in the course of employment and name of his father have all been admitted by the Respondent. I do not consider the Respondent raising any serious challenge to the identity of the Deceased. All particulars of the Deceased then known to the Respondent have been stated in Form 2. As such, if not for a competing applicant, the 2nd Applicant should have no difficulty in establishing his claim. For a claim under the ECO, it is simply unnecessary under normal circumstances for an applicant to adduce evidence concerning the deceased’s educational background, his family life and history, correspondence with other family members and even details of his funeral. The extra costs incurred in proving identity are solely brought about by the 1st Applicant, and not the Respondent. 

12.Fourthly, there should not be any surprise to the 2^nd Applicant that the identity issue will be hotly contested. According to evidence revealed at trial of the identity issue, the 2^nd Applicant initially had a deal with Hanif (see paragraphs 53 to 60 of my Judgment) whereby they jointly claimed compensation from the Respondent. He even corresponded with Boase, Cohen & Collins (“BCC”) when the 1^st Application was first lodged with the Court (see paragraph 63 of my Judgment). So when he decided to make a second application, no doubt he would be expecting a huge dispute on this issue, an issue which only the two Applicants know best and an issue which will have a serious implication, in term of criminal liability, on the losing Applicant. In my judgment, this is also an issue which only the two Applicants can solve. On the other hand, there is no evidence whatsoever to suggest that the Respondent knew anything about their previous deal and the actual identity of the Deceased. It is the 1^st Applicant’s claim that makes the trial of the identity issue necessary.

13.Fifthly, the identity evidence of the two Applicants is so diametrically different and irreconcilable. I do not think the Respondent has any clue at all who is telling the truth because documents purporting to be issued by relevant authorities of Pakistan have been adduced by both Applicants. I do not believe that the trial of the preliminary issue could have been avoided even though the Respondent had made an early payment into Court in the manner suggested by Mr. Wright. In the circumstances, it is totally unfair and unreasonable to say that the Respondent is betting on two horses. I agree to Mr. Sahkrani’s submission that the Respondent simply do not have the formbooks of the horses.

14.Sixthly, there are simply no applicable rules of court for payment into court in the manner suggested by Mr. Wright. In the course of submission Mr. Wright has suggested that at some time of the proceedings the 1^st Applicant could not be located. As such payment by the Respondent to them or into Court at that time should be feasible. I consider that it will be too harsh to the Respondent if they are expected to make such judgment without the benefit of cross-examination of key witnesses on factual disputes, particularly when the competing Applicants have produced a number of documents purporting to be genuine.

15.By reasons of the above I do not consider it fair in the circumstances to hold the Respondent liable to the 2^nd Applicant for costs of proving identity of the Deceased vis-à-vis the 1^st Applicant. Amendment proposed by the 2^nd Applicant along the line of paragraph 5(i) is hereby refused.

16.Mr. Sakhrani had agreed to the proposed orders set out in paragraph 5(ii) and (iii) above. On a fair reading of the proposed orders set out in paragraph 5(ii), the Respondent has in fact by this agreement agreed to pay the costs of this costs variation application even the Court ruled against the 2^nd Applicant. Since this is what the parties have agreed, I do not intend to upset a term which has been agreed.

17.As regards the proposed order set out in paragraph 5(iv) above, the 2^nd Applicant made no submission in support. Although the Respondent agreed to it, it really does not concern the Respondent. I do not consider there is any basis in support of this proposed order and accordingly, I refuse to include this as part of the costs order.

18.I now make the following order:

i) the costs order repeated in paragraph 2(i) above be varied from party and party basis to common fund basis;

ii) the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application, from the date of judgment up to the date hereof, with a certificate for counsel for this costs variation application, on a common fund basis, to be taxed if not agreed;

iii) the Respondent do pay all costs of and incidental to the 2^nd Applicant’s application for approval of apportionment and payment out, on a common fund basis, to be taxed if not agreed; and

iv) application to hold the Respondent liable for the costs of and occasioned by the 2^nd Applicant in proving the identity of the Deceased, including the costs of the trial referred to paragraph 6 of the sealed judgment (repeated as paragraph 2(ii) above) be refused; and

v) the 2^nd Applicants own costs for this costs variation application be taxed in accordance with Legal Aid Regulations. For the purpose of taxation, the entire morning on 2^nd January 2007 be apportioned to the hearing of this costs variation application.

Security for Costs Application

19.Miss Gwilt submitted that the 1^st Applicant intends to oppose the said application of the 2^nd Applicant if leave to appeal is granted by this Court. However, if leave is not granted, it will not be necessary for the parties to incur costs on the matter.

20.At the hearing, I made the following orders after hearing preliminary submissions from counsel:

i) the 1^st Applicant’s summons for security for costs is to be adjourned sine die with liberty to restore for argument in the event leave is granted in favour of the 1^st Applicant with three hours reserved;

ii) in the event leave to appeal is granted, there be leave to the 1^st Applicant to file and serve an affirmation in opposition within 28 days after the date of handing down of my ruling;

iii) the 2^nd Applicant is at liberty to file and serve an affirmation in reply within 28 days thereafter;

iv) there be no further affirmation to be filed and used by the parties without leave of the Court; and

v) the costs of this application be reserved.

Leave to Appeal Application

21.This application concerns mainly the two Applicants. The 1^st Applicant set out in her two summonses two identical sets of 14 numbered paragraphs of grounds of appeal. These grounds can broadly be grouped under the following two main grounds:

i) I was wrong in accepting the evidence adduced in support of the Deceased being Saif-ur-Rehman and rejecting evidence in favour of Mohammad Shahzad; and

ii) new evidence respectively from Mr. Boase of BCC, the solicitor acting for Hanif and Tahira in the 1^st Application and from Tariq who produced a document purported to be the official death registration record of Saif-ur-Rehman emerges. In the light of the new evidence, I was wrong in concluding the Deceased being Saif-ur-Rehman.

22.There seems to be no dispute between the Applicants that the proper test for leave to appeal application is whether there is a “real prospect of success”. This test is in fact set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538. Miss Gwilt for the 1^st Applicant submitted that the approach is for the Court to form a preliminary view of the prospect of success taking into consideration the new evidence. The test has a low threshold and therefore the Court should only refuse leave when satisfied that the 1^st Applicant has no prospect of success. For completeness sake, the principles set out in Smith v Cosworth by Lord Woolf, MR, are set out as follows:

“i) The Court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii) the court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

These principles were cited with approval by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999. The 1^st Applicant is relying on the first limb of the Smith v Cosworth principles.

23.Concerning the first ground of appeal, after reading the details set out in the summonses the 1^st Applicant is basically saying that I have wrongly preferred the evidence of the 2^nd Applicant against the weight of evidence put in by her. It is an appeal against my finding of facts. In order to succeed on a challenge of facts on appeal, the 1^st Applicant has to overcome a very high hurdle. At the hearing the 1^st Applicant has not shown to me that my conclusion is unsupported by evidence or that it contradicts any incontrovertible evidence.  Nor has the 1^st Applicant identified concisely and precisely which part of said judgment goes wrong. I do not think the 1^st Applicant has made out a good case.

24.The principles upon which the appellate court will upset the primary findings of facts based on credibility of witnesses and assessment of damages are well settled. In Hong Kong such principles have been set out by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 663 and reiterated by Woo VP in Tin Kwong International Enterprise Company Limited & ors v San Tung & anor (unreported, CACV 164/2005, 17^th January 2006,). The said principles have been helpfully summarized by Woo VP in Tin Kwong (at paragraph 14) as follows:

i) if the Court of Appeal is to reverse the trial judge’s decision on the facts, it “must not merely entertain doubt whether the decision below is right, but be convinced it is wrong”;

ii) the Court of Appeal will certainly not disturb the judge’s finding of primary fact where they are based on the credibility of witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand;

iii) in order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either (1) that there is no evidence to support it; or (2) that is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was “contrary to the weight of the evidence”. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.

25.Applying the above principles, I really do not consider the 1^st Applicant has any realistic prospect of success on the 1^st ground.

26.As for the 2^nd ground, the “new evidence’ is contained in two affidavits. The 1^st Applicant caused to be filed an affidavit of Mr. Boase to be sworn on 14^th December 2006 and filed on 16^th December 2006 (“Boase’s Affidavit), only about two weeks before the hearing but more than three months after the summonses were issued. In the Boase’s Affidavit, he said that it was Atiq who visited him at his office on 16^th May 2000. Atiq was then well-dressed and said he was helping his father’s life-long friend, Hanif, whose son called Shahzad died in an industrial accident. Atiq alleged he would be visiting Hong Kong for business many times a year, speaking better English and versed in dealing with legal matters, he wanted to see what his firm could do for this case. The next day (17^th May), Atiq returned with Tariq who was introduced to him as the younger brother of Shahzad. Two days later (19^th May), the two returned with Hanif who was introduced as father of the family. Particulars of family members were given. It was also said that a HK$5,000 would be deposited with the firm’s account. Mr. Boase said that it was Atiq, who spoke good English and did the translation of a letter prepared by his firm to Hanif and Tariq. Boase was suggesting that Atiq spoke better English than Tariq. He said at no time Atiq had said anything that Shahzad was a member of his family or said something to cast doubt on what Hanif and Tariq said about Shahzad being a member of Hanif’s family. Atiq later returned to Pakistan. Hanif and Tariq later instructed Tariq would be the main contact and whenever there were any enquiries from Atiq, Mr. Boase should refer them to Tariq.

27.The fact that Atiq lodged a similar claim came to Boase as surprise. Later on 3^rd October 2000, Tariq brought Mr. Abdul Rehman to his office whose affirmation was then prepared and later filed with Court. He also made certain comments on the way the Legal Aid Department and the 2^nd Applicant handled the matter. He also expressed his views on certain application made to the Legal Aid Department and to this Court. These parts were not directly relevant to the issues in question and are not repeated herein.

28.The other affidavit was filed by Tariq on 28^th December 2006, although it was sworn some four months ago on 29^th August 2006. Tariq said that he had been advised by his lawyers Quan & Co to gather more documents. He had tried to obtain school attendance record and public record about Atiq’s brother Saif. However he could not be able to get any. He said he was in contact with Madam Razia, the stepmother of Atiq and the widow of Abdul Rehman. He deposed that Madam Razia had been kicked out of her residence after the death of Abdul Rehman. After his continuing pressing in April 2006, he said Madam Razia gave his friend Mr. Muhammad Ali Khan some documents who in turn showed the documents to him. He found out that among these documents, there was a death certificate issued by the Municipal Office of Gujranwala of a person called Saif whose father was Abdul Rehman. The date of death was 18^th December 1989. A copy of the death certificate together with the English translation was also exhibited.

29.In order to assess whether there is really no real prospect of success in the appeal that leave should be refused, the Court has to assess whether the appellate court will be likely to receive fresh or further evidence in the appeal. The test is again well settled. The three conditions in Ladd v Marshall [1954] 1 W.L.R. 1489 which can be summarized as follows, must be satisfied:

i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

ii) the evidence must be such that, if given, would probably have an important influence on the result of the case, although it needs not be decisive; and

iii) the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible although it need not be incontrovertible.

30.I do not think the evidence of Mr. Boase can add anything to the 1^st Applicant’s case. His evidence has basically been covered by Hanif and Tariq at trial. His evidence is not inconsistent with that adduced by Atiq. It is Atiq’s evidence that he had an agreement initially with Hanif to claim compensation: see paragraph 54 of my judgment. He also approached BCC for the purpose of instructing solicitors to do the claim: see paragraph 61 of my judgment. In order to carry into effect that agreement the Court would not be surprised to hear Atiq telling Mr. Boase that Hanif was the Deceased’s father and Tariq the Deceased’s brother. As such, although Boase’s affidavit appears to satisfy the 3^rd condition of Ladd v Marshall, the 2^nd condition is not satisfied.

31.There is no explanation as to why Mr. Boase’s evidence cannot be given earlier. The 1^st condition of Ladd v Marshall is not satisfied.

32.As regards Tariq’s evidence, he said in his affidavit that he has been pressed by his solicitors Messrs. Quan & Co. to gather more documents before trial. He also said he knew Atiq had a brother called Saif. It appeared that he was well aware of these facts and had informed his lawyers. But he said “he could not get any confirmation of this from the Public Office in Pakistan.”: see paragraph 3 of Tariq’s Affidavit. There is no mention at all of the effort of Tariq or his solicitors having ever approached the relevant authorities for the death certificate of Saif. The 1^st Applicant seems to suggest the discovery of the death certificate is rather accidental.

33.In fact, according to the statement by Abdul Rehman filed with Court as early as 2^nd May 2002 when the 1^st Applicant and Hanif was represented by BCC, Abdul Rehman alleged that he had a son called Saif who had passed away because “a disease affected Saif-ur-Rehman and he died in 1989”. So these “facts” are not new to the 1^st Applicant.  It was made known to the 1^st Applicant, the latest by mid 2002. The 1^st Applicant could have made application for the relevant certificate, either herself, or through her family members or even Abdul Rehman. Why the alleged death certificate cannot be adduced earlier remains unexplained. Obviously the first condition of Ladd v Marshall is not met.

34.Miss Gwilt submitted that all along the 1^st Applicant’s position is that Saif and Shahzad are two different persons and the Deceased is Shahzad. This death certificate serves to explain at least, inter alia, why the 2^nd Applicant cannot produce at trial photos showing a teenage Saif with Atiq’s family. It is because he died young. It is also not inconsistent with reports of the Pakistan Police, as they had not said they had checked with the death registry. It is therefore an important document and condition two of Ladd v Marshall can be satisfied.

35.One of the particular features of this case is that there are many documents purporting to be issued by the relevant Pakistan authorities saying that the Deceased being Shahzad. These documents include birth certificate, passports and identity card. There is also the Hong Kong identity card of Shahzad. At trial, these documents were weighed against the other sets of documents, including documents also purporting to be issued by the Pakistan authorities showing the Deceased being Saif. As such, in the special circumstances of this case one really cannot take these “official documents”, including the death certificate of Saif now produced by Tariq, as evidence of truth of the contents. I will not say this death certificate is unimportant but definitely I do not consider it having an important influence on the outcome of the result. It is merely one of the many documents that goes to the weighing pan for the 1^st Applicant. Based on the analysis of facts set out in my said judgment, and for the reason set out in the following paragraph, I do not think such death certificate adds anything of substance to the 1^st Applicant’s evidence. The second condition of Ladd v Marshall is not satisfied.

36.It is noted that the death certificate produced by Tariq has the following peculiar features:

i) the document was attested by one GULZAR AHMED, the Assistant Protocol Officer of the Ministry of Foreign Affairs at Lahore. The date of attestation written thereunder was “19-11-06”, i.e. 19^th November 2006.  The attestation part is marked “A” on the certificate. Next to this part it is stated that the “signatures & seal” of the attestation part was verified by one MAZHAR JAVED, Consul (Consular) of the Consulate General of Pakistan in Hong Kong. The date chopped thereunder, which is apparently the date of verification, is 28^th April 2006. No doubt the verification should come later in time than the attestation but why it bears an earlier date? This discrepancy on this death certificate has not been explained;

ii) again, Tariq sworn the affidavit on 29^th August 2006. How can he then possess a document attested in Pakistan on 19^th November 2006?

iii) It is strange to note that the informer of the death of Saif is recorded on the death certificate as Atiq instead of his father, Abdul Rehman;

iv) when the certificate was attested in 2006, Abdul Rehman had already passed away. It would be inconceivable that it is Madam Razia, who Tariq has described as “uneducated” and could ‘neither write nor read” who showed interest and then applied for attestation of the death certificate of a son who has died before her marriage with Abdul Rehman. Neither is it conceivable that it is she who has submitted the death certificate for verification by the Pakistan Consulate General of Hong Kong. Tariq has not explained whether it is he who asked Abdul Rehman or Madam Razia to obtain the death certificate. If it is upon Tariq’s request that Abdul Rehman or Madam Razia applied for the death certificate, he has never mentioned that in his evidence, either in the form of written statements or oral testimony in court; and

v) the verification by the consulate general of Pakistan in Hong Kong only relates to the signature and the seal of the attesting officer and apparently not the contents of the certificate.

37.In light of the peculiarities set out in the preceding paragraph, the death certificate purporting to relate to Saif should be received with caution and scepticism. In my judgment, I do not think the contents of the document are apparently credible, and thus the third condition of the Ladd v Marshall test is also not satisfied.

38.By reasons of the above, my assessment is that the new evidence is unlikely to be accepted by the appellate court. I do not consider there is any real prospect of success on these intended grounds of appeal. I therefore dismiss the two summonses of the 1^st Applicant.

39.There is no reason why costs should not follow event. I therefore grant a costs order nisi that the 1^st Applicant do pay the 2^nd Applicant’s costs of the Leave to Appeal Application with certificate for counsel, to be taxed if not agreed. The 2^nd Applicant’s own costs in the Leave to Appeal Application be taxed in accordance with the Legal Aids Application.

40.In view of my decision in the leave to appeal application, I do not think it is necessary for this Court to deal with the 2^nd Applicant’s substantive application for security for costs further, save and except the issue of costs of that application. I therefore make an order that the parties be at liberty to apply generally in respect of the security for costs application in the event the outstanding matters, including the issue of costs of that application, cannot be sorted out between them by agreement.

Miss Angela Gwilt instructed by Quan & Co for the 1^st Applicant in the 1^stApplication (DCEC 493/2000).

Mr. John Wright instructed by Burke Fung & Li (assigned by DLA) for the 2^nd Applicant in the 2^nd Application (DCEC 30/2001).

Mr. Ashok Sakhrani instructed by Deacons for the Respondents in both the 1^st and 2^nd Applications.