Cheng Kwing Yeung v. Hong Kong Ham Holdings Ltd

DCPI 736/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 736 OF 2011

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D E C I S I O N

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1.This is the Plaintiff’s application for leave to apply to the Court of Appeal against my Judgment handed down on 9 May 2013.  The fundamental issue I have to resolve is the reason causing the Plaintiff’s fall.  This was set out under paragraph 11, 12 and 13 of the Judgment.  The Plaintiff’s counsel under ground 4 of the submissions of the Plaintiff stated that it was wrong for me to accept the evidence of Mr Tang, the defendant’s witness.  This is because Mr Tang admitted in oral testimony that he had not told the whole truth due to pressure from the defendant:- 

a) Mr Tang admitted under cross-examination that he had pressure from the defendant and therefore not all his evidence was true. 

b) Mr Tang gave two contrasting version of how the accident happened in his witness statement and during his oral testimony.  While he said in his witness statement that he saw how the accident happened, he said firmly on a few occasions during oral testimony that his back was facing the Plaintiff and he did not see how the accident happened.  He simply could not explain the discrepancy.

This is already sufficient ground to find him a dishonest witness.

2.I simply disagree.  A witness may not give satisfactory or untruthful evidence on one part of the evidence but his other part of evidence may be truthful.  This is the situation here.  Under ground 6(a), the Plaintiff’s counsel did not cross-examine him in detail to reflect that what he said under paragraph 11 was not truthful.  It is not good to say that not all his evidence was true. This is simply for the reason that one part of the evidence may not be true but other parts of his evidence were truthful.  Under 6(b), the contradiction simply is not helpful to determine the conversation referred to under paragraph 11.

3.Now, the most important thing is that there is no evidence to contradict Tang’s evidence in relating to what the Plaintiff told him after the accident had happened.  It cannot be denied that his answer to the question put to him by the Plaintiff’s counsel was spontaneous and clear.  By spontaneous, I mean that he did not pause for any moment to give the answer:  There is no time to concoct the evidence.  I say under paragraph 11 that he gave a truthful reply.

4.Now the evidence in that respect is important because it reflects on the causation of the Plaintiff’s fall.  In paragraph 11, I said that:-

“If the plaintiff had not stepped on the hose, he would not have fallen. If his fall had been due to the slippery mess of the floor, he should have told them about it in his conversation between the two of them but the Plaintiff did not do so.”

5.Under paragraph 13, I make a finding that “The Plaintiff’s fall was due to his own carelessness by not watching the water hose.  He stepped on it and fell” and that is all.  He told Tang after he fallen that he stepped on the hose and fell and if his fall had anything to do with slipper mess of the floor, he would have told Tang about this but he did not tell Tang anything relating to the slipper mess of the floor.”

6.Ground 4 cannot stand.  Once it cannot stand, the other grounds of the application to appeal must fail.  I therefore dismiss the application of the Plaintiff to apply for leave to the Court of Appeal.

Ms Tsui Ka Wah, instructed by Cheng, Yeung & Co, for the plaintiff

Mr Ashok K Sakhrani, instructed by Munros, for the defendant