Singh Chamkaur v. Richard Ethan Latker t/a Sino Indian Trade Enterprises

CACV 270/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2009

(ON APPEAL FROM DCEC NO. 796 OF 2007)

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BETWEEN

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Before: Hon Tang Ag CJHC, Le Pichon JA and Kwan JA in Court

Date of Hearing: 22 February 2011

Date of Judgment: 22 February 2011

Date of Reasons for Judgment: 17 March 2011

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REASONS FOR JUDGMENT

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Hon Tang Ag CJHC:

1.Mr Latker was the Respondent in DCEC 796/2007.

2.On 15 June 2006, five persons were engaged in renovation work at a house in Sai Kung (“the Site”) owned by Mr Latker, amongst whom was Singh Chamkaur, the Applicant in DCEC 796/2007.  Mr Latker was not in Hong Kong on the day.

3.The Applicant claimed that in the course of such work, he was injured in the foot when some bricks he was moving fell on his toes.  That became his claim in DCEC 796/2007. 

4.At trial, two of the workers gave evidence on behalf of Mr Latker.  They were Mr Cheung Yui Hang (“Mr Cheung”) and Mr Raghu Nath Prasad (“Mr Prasad”).  Their evidence was that the Respondent was joy riding on a scooter which belonged to Mr Latker, and was injured when he fell.

5.Mr Latker also gave evidence, in particular that the Applicant had admitted to him that he had taken the motor cycle for no reason and injured his foot as a result; and also to show that the Applicant had signed a receipt which recorded a deduction of one day’s pay from his wages for “Damage, dereliction”. 

6.Another worker at the site was Mr Shah Rozan Ali (“Ali”), who was, according to Mr Latker, summarily dismissed on 29 June, because:

“The work vehicle [he] had entrusted Mr Ali with had been left with the windows open in the rain for at least a week. Mold was growing in the car. The worksite and [their] temporary residence was littered with garbage.”

7.It was also Mr Latker’s complaint that Ali had fraudulently sided with the Applicant.  Ali was not a witness at trial.

8.After trial, District Judge Chow found in the Applicant’s favour and awarded him damages in the sum of $45,700 together with interests and costs.

9.Mr Latker was dissatisfied with the decision and he appealed to this Court, and his appeal was dismissed by us on 10 November 2010.  Our Reasons for Decision was handed down on 16 November 2010.

10.The 5^th person at the Site was a Mr Leung Kin Shing (“Mr Leung”).  Mr Leung was not called as a witness.

11.This is Mr Latker’s application for leave to appeal to the Court of Final Appeal.  He has also applied for a stay of execution under O. 45 r. 11 on the ground that prima facie evidence exists that the original verdict was obtained through fraud.  The summons was filed on 26 November 2010.

12.Mr Latker has filed 8 affirmations.  We were told that in support of the application for a stay under O. 45 r. 11, he relied in particular on the affirmation of Mr Behull and the 1^st affirmation of Mr Lo Man Chun. 

13.These two affirmations dealt principally with Mr Latker’s assertion that Mr Leung was an important witness whom he was unable to call at the trial.  That Mr Leung might have been able to give evidence on his behalf was well known to him, since in Mr Latker’s “Response to Application” dated 23 August 2007, at a time when he was acting in person, he said:

“In August 2007 [Mr Latker] conducted extensive interviews with [Cheung], [Prasad] and finally [Leung], to prepare witness statements. Digital audio recordings were made of the interviews. The men confirmed that no accident took place on the worksite, and the men confirmed that [the Applicant] injured himself while riding on [Mr Latker’s] motor cycle without permission.

Mr Cheung explained that he had left [Mr Latker’s] employment before his return from France because of consistent pressure from [Ali] to lie about the events of June 15 on [the Applicant’s] behalf.

[Mr Leung] also reported that [Ali] contacted him to solicit a false report of events.” See page 44 of the bundle

14.Essentially, Mr Behull and Mr Lo’s evidence is that, at Mr Latker’s request, they have spoken with Mr Leung and that Mr Leung had confirmed to them that the Applicant was injured whilst riding a scooter. 

15.According to Mr Behull, who had spoken to Mr Leung on the telephone:

“8. … he might write a sworn statement if he was sufficiently compensated for the ‘stress’ incurred in coming forward as a witness.

It seemed apparent that he expected a significant sum, but he would not say precisely how much he was seeking. He asked me repeatedly how much Mr Latker was willing to offer.

Finally, I told him that perhaps Mr Latker might offer HK$3,000 to compensate him for his time and effort (although Mr Latker and I had not really agreed on a figure). Mr Leung scoffed at the offer, saying he might as well do charity work. He then ended the conversation by disconnecting his mobile.”

16.Mr Lo had actually met Mr Leung together with Mr Latker and acted as interpreter.  According to Mr Lo, Mr Leung said:

“11. … that he did not want to go to court unless he was going to be paid. He asked how much money Mr Latker was willing to pay.

12. Mr Latker replied that he could only compensate him a reasonable amount for any time and trouble as the law might allow, but could not pay him for testimony (which I translated as ‘Kui Lo’). Mr Leung remained silent for a while and did not respond to questions. …

……

21. Mr Latker asked him why he refused to testify in the case. Mr Leung said he did not want to go to court, and did not want (the Applicant) to come after him.”

17.O. 45 r. 11 provides that:

“Without prejudice to O. 47 r. 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.”

18.This case does not fall within O. 45 r. 11 at all.  Nor does the new evidence constitute any matter which has occurred subsequent to trial, or prima facie evidence of fraud.  Not only is Mr Leung’s evidence of dubious credibility, Mr Leung was a witness whom Mr Latker could have called had he exercised reasonable diligence at the trial.  Mr Latker was represented by solicitors and counsel at trial (although initially he acted in person) and on appeal.  Basically, what Mr Latker is trying to do is to reopen the trial or reargue the appeal which he is not entitled to do. 

19.I will not deal with Mr Latker’s other allegations, for example, that the Applicant had lied at trial, on, say, the state of the renovation work on 15 June 2006.

20.I turn to the application for leave to appeal to the Court of Final Appeal, I am satisfied that there is no basis upon which leave to appeal can be granted.  None of the requirements of section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 is satisfied.

21.For the above reasons, I would dismiss both applications with costs. Such costs are to be taxed if not agreed.  The Applicant’s costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Le Pichon JA:

22.I agree with the reasons for judgment of Tang Acting Chief Judge and Kwan JA.

Hon Kwan JA:

23.I respectfully agree with the Reasons for Judgment of the Acting Chief Judge and I just wish to add this. In support of his proposition that the court should exercise its power to grant a stay under O. 45 r. 11 where there is evidence to show that the judgment was obtained by fraud, Mr. Latker sought to adduce new evidence before us to show that the evidence given by Mr. Prasad in Hindi before the judge was destroyed through poor quality translation. He said in his 2^nd affirmation filed on 21 February 2011 he had instructed his counsel to argue on appeal that the translation of Mr. Prasad’s evidence was “gravely flawed”. The contention about the quality of translation was not a matter raised before this court at the hearing of the appeal. It should have been raised at the trial. We would not have allowed this point to be taken on appeal, for the reasons given in paragraph 31 of our Reasons for Decision on 16 November 2010.

The Respondent, in person, present.

Mr. Kamlesh Sadhwani instructed by Messrs Jal. N. Karbhari & Co. assigned by Director of Legal Aid for the Applicant