Lam Pui Yi Anita v. Secretary for Justice for and on behalf of Director of Food and Environmental Hygiene Formerly Known As Director of Urban Services and Another

CACV 259/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 2009

(ON APPEAL FROM HCPI NO. 924 OF 2002)

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BETWEEN

Before: Hon Rogers VP, Le Pichon JA and Lunn J in Court

Date of Hearing: 27 January 2011

Date of Judgment: 27 January 2011

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J U D G M E N T
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Hon Rogers VP:

1.I have no hesitation in saying that I consider that leave should be refused in this case. As was referred to in the judgment of this court, the plaintiff was injured on 25 October 1999. That is now 11 years and 3 months ago.

2.The trial started on 14 December 2005.  After the end of the plaintiff’s evidence, the first defendant led evidence that went beyond the witness statement.  That, in itself, caused delay and further applications.  Thereafter, the course which the trial took was little short of a disaster.  In total, there were 20 hearing days spread over three years.  Final submissions were made on 13 October 2008, and the judgment was not given until 10 months later, on 13 August 2009.

3.Personal injury litigation is the legal system’s attempt to remedy whatever injury has been occasioned to the claimant.  The only remedies which the courts have are to pronounce the responsibility for an accident and to award such monetary compensation as are deemed appropriate for any injury suffered as a result of a wrong done.  The course that the hearing of this claim has taken has itself caused such distress to the plaintiff that instead of the litigation resulting in some benefit that would compensate the plaintiff for her injuries it has delayed the healing process.

4.In this application, it is not said that there is any matter of great general or public importance that arises and needs to be considered by the Court of Final Appeal.  What is said is that this court has considered the facts of this case, which are almost entirely not in dispute, and held that they fall within the settled law of negligence.  It is the function of this court to review the decisions at first instance.  If necessary, this court has to review questions of fact.  But in this case it has not done so except in regard to considering what were the lasting effects of the injury sustained.

5.Whilst it is the practice of this court not to grant leave to appeal under the “or otherwise” ground except in the most exceptional circumstances, and to leave the decision as to whether the case should be reviewed to the Court of Final Appeal, I have no doubt in this case that it would be wrong to give leave.  To allow an appeal in this case would not be to use the law and the legal system to further justice, but it would be to abuse the law and the legal system to cause yet further injustice.

6.I would, therefore, refuse leave to appeal.

Hon Le Pichon JA:

7.I agree.

Hon Lunn J:

8.I too agree.

(Submissions on costs)

9.I consider that this application should never have been made and I consider that, in the circumstances and given the fact that the plaintiff is on legal aid, she should not be put out of pocket by one cent as regards this.

10.I consider that this is a matter for costs on an indemnity basis, with certificate for two counsel.

Ms Alice Mok SC and Mr Jeevan Hingorani, instructed by Messrs Poon, Sum & Cheng, for the Plaintiff/Respondent

Mr Tong T F Ng, instructed by Messrs Tang, Wong & Cheung, for the 1st and 2nd Defendants/Applicants