Liu Wai Kwok v. Lui Chi Wai

cacv 10/2009

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 10 of 2009

(on appeal from HCPI NO. 36 of 2008)

________________________

BETWEEN

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 5 August 2009

Date of Judgment: 5 August 2009

________________________

J U D G M E N T

________________________

Hon Rogers VP:

1.This is an appeal against a decision of Fung J.  Although it is a case management decision in which the judge quite rightly tried to limit the matters, the question here revolves around whether the deceased, Madam Lau Kit-ling, was running a garage business, and possibly other businesses as well, but primarily a garage business, at the time of her decease.

2.It does appear that the business registration which she had in respect of the garage business had lapsed.  It also appears that there might be a slight dearth of reporting income to the tax authorities.  But be that as it may, what is in issue in this case is whether or not, first of all, the deceased, Madam Lau, was running a business.

3.The three witness statements go, first of all, to that issue, and since the Defendant is putting the Plaintiff to strict proof as to whether a garage business was being run, I see no alternative at this stage but to let those witness statements go in.  It may be that the parties can come to some sensible arrangement before the matter comes to trial, but, as things stand at the moment, the matter is in issue and, although the statements came in late and the judge quite rightly took a dim view of them coming in late, nevertheless, they are relevant and I cannot see how the court can exclude them.

4.I would therefore allow this appeal.

Hon Le Pichon JA:

5.I agree.

Ms Jolie Chao, instructed by Messrs Yip, Tse & Tang, for the Plaintiff/Appellant

Mr Martin Wong, instructed by Messrs Deacons, for the Defendant/Respondent