Joybase Corporation Ltd v. Li Kai Fai

CACV186/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 186 OF 2013

(ON APPEAL FROM DCCJ 3016/2011)

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Before : Hon Yuen JA in Chambers

Date of Hearing : 28 October 2014

Date of Judgment : 28 October 2014

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JUDGMENT

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Hon Yuen JA:

1.This is an application for leave to adduce fresh evidence on appeal. The appeal is due to be heard next week, on 4 November 2014. The summons was issued on 8 October 2014 even though the affirmation in support (exhibiting the fresh evidence) was made on 29 July 2014. I shall come back to this point later.

Material facts

2.The facts material to this application are as follows.

3.The appellant owns premises (referred to at trial as “the Upper Flat”) situated immediately above the respondent’s premises (“the Premises”).  The respondent is a company owned by a solicitor’s wife and the Premises were used for storing old case files. 

4.On 13 January 2010, the respondent discovered water leaking from the ceiling into the premises, causing a false ceiling in a storeroom to collapse (“the incident”).  A report was made to the management office.

5.A week later, an expert instructed by the respondent inspected both the Upper Flat and the Premises. In a nutshell, his opinion was that the water leakage was not from the external wall, and that since the toilets in the Upper Flat had been relocated, the probable source of the water was from the Upper Flat.  Subsequently the appellant also consulted an expert.

Legal proceedings

6.The respondent commenced proceedings in the District Court about a year after the incident.

7.The trial took place in February and April 2013 before Stephen Chow DJ.  The respondent’s expert gave evidence.  The appellant called a person to testify but it turned out that he had not inspected the Upper Flat and the Premises at the material time, and had not made the report.

8.On 6 May 2013 the judge gave judgment for the respondent.  The only issue was liability because the parties had agreed on the quantum of damages.    

9.The appellant lodged a notice of appeal on 9 September 2013.

Application to adduce fresh evidence

10.Coming now to the application to adduce fresh evidence, the appellant is seeking leave to produce on appeal:

(a) a set of photographs called “Photos A” which show the collapsed false ceiling.  These photographs are date-stamped 18 December 2009, ie a month before the incident.  The appellant says he was given these photographs in late December 2009 by a person from the management office.  However it was only after judgment was given that his wife noticed the date-stamp on these photographs which he says shows that the damage to the ceiling had occurred prior to the incident;

(b) a set of photographs called “Photos B” which show the external wall.  These photographs were taken by the appellant himself in August 2011.  He says he had provided them to his expert, but they were not produced at trial.     

Principles

11.It is well-established (and the parties cannot dispute) that all three conditions set out in Ladd v Marshall [1954] 3 All ER 745 must be satisfied before the court would consider, in the exercise of its discretion, whether or not to permit fresh evidence to be adduced on appeal.

12.The three conditions are:

(1) the applicant (ie the appellant in our case) must show that the evidence could not have been obtained with reasonable diligence for use at the trial; 

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case;

(3) 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.

These principles have been well-established for the past 60 years and cannot be distinguished on the facts.

Discussion 

13.It is clear that the present application is entirely unmeritorious as it does not even get off the ground on the first condition.  Both sets of photographs were in the appellant’s possession before the trial.  He has not said in his affirmation that he had forgotten about them, or that he had lost the means of access to them.  He has not explained why he did not include them in the discovery process.  He has not explained why he did not adduce them as evidence at trial.  Insofar as it is suggested that he did not notice the date-stamp in “Photos A” until after judgment when his wife alerted him to it, that does not satisfy the “reasonable diligence” test in the first condition as well.

14.Since the appellant has failed miserably to cross even the first hurdle, it is not necessary for me to discuss the other two conditions.

15.Further, there is no explanation at all why the summons to adduce fresh evidence was filed only on 8 October 2014, when the affirmation in support, exhibiting the relevant photographs, had been made on 29 July 2014, more than two months before.  It is common sense that the less time there is between the filing of such an application and the hearing of the appeal, the greater the listing difficulties and pressures put on court hearing times.  This may be reflected in the level of costs on which I will hear the parties now.     

[After arguments on costs]

Costs

16.The application is dismissed with costs to be paid by the appellant to the respondent on an indemnity basis, to be taxed and paid forthwith.    

Mr Kenny CP LIN, instructed by Lo, Wong & Tsui, Solicitors for the Plaintiff (Respondent/Respondent)

Mr LIU Chin-Yu, instructed by Tso & Associates, Solicitors for the Defendant (Applicant/Appellant)