Hoptai Sharkfins Co Ltd v. Productos Pesqueros Gallegos, Sl

CACV 240/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2014

(ON APPEAL FROM HCA NO. 1283 OF 2012)

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REASONS FOR JUDGMENT
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Hon Lam VP:

1.Presently, Kwan JA shall give the reasons for the dismissal of the appeal which I respectfully agree. I take this opportunity to highlight the distinction between the roles of the trial judge and the court of appeal as discussed in the recent cases cited by Her Ladyship. By now, the legal profession should appreciate such distinction and advise their clients on the importance of proper preparation for the trial (including the deployment of the necessary resources in it, including the engagement of counsel of appropriate seniority to conduct the trial). In a case where the dispute is primarily factual in nature, the primary focus in the conduct of litigation should be put on the trial. Our system of appeals is not designed to allow disappointed litigants to have a second round of the trial. In many respects they are bound by what had transpired at the trial and the conclusions reached below. Due to the inherent limits in an appeal process, the engagement of counsel of greater seniority in an appeal may not remedy what had been overlooked at the trial. I said these by way of general remarks, without intending them to be directed at the counsel who appeared below. As far as I can gather from what I have read, counsel for the Defendant appeared at the trial had conducted the trial with competence and skill and had done his best for the Defendant.

Hon Kwan JA:

2.On 3 November 2014, Deputy High Court Judge Mayo gave judgment for the plaintiff, Hoptai Sharkfins Company Limited (“the plaintiff” or “Hoptai”), after a five-day trial in October 2014, in the sum of €195,250 with interest and costs.  The defendant, Productos Pesqueros Gallegos, S.L. (“the defendant” or “Propegal”), brought this appeal to challenge the findings of primary fact of the judge.

3.At the end of the hearing, the appeal was dismissed with costs to the plaintiff.  These are the reasons for our judgment.

Background

4.For present purpose, the background may be summarised as follows.

5.Hoptai is a Hong Kong company engaged in the retail business of fish products.  Propegal is a Spanish company which exports fish products including sharks fins.  A contract was made between them dated 10 April 2012 (“the Contract”) for the sale to Hoptai of a quantity of sharks fins.  The total purchase price, due to the subsequent increase of the quantity of goods purchased, amounted to €195,250.  Save for the deposit of €32,800, Propegal denied it had received the balance.  Hoptai brought this action claiming the purchase price it had paid as damages for non-delivery.  Propegal counterclaimed damages including the balance of the purchase price.

6.The main witnesses for Hoptai were its general manager, Joseph Au Yeung Nim Ching (“Joseph”) and a member of its accounts staff, Cindy Ho Pui Yee (“Cindy”).  The only witness for Propegal was its export sales executive, Carolina Ramiro (“Carolina”).  Carolina was the only person put forward by Propegal to deal with Hoptai.  There is no dispute that she was authorised by Propegal to communicate with Hoptai through emails and telephone calls[1].

7.Under the Contract, Hoptai was required to make a 20% down payment and the balance of 80% was to be paid by bank transfer upon copy of the full set of documents sent by email to Hoptai’s official email address at [email protected] (“the Hoptai address”).  The details of Propegal’s bank account at Banco Popular in Vigo, Spain (“the Banco Popular Account”) were set out in the Contract.

8.The official email address that had been used by Carolina in dealing with Hoptai in the past was [email protected] (“the Propegal address”).

9.During the period from 14 May 2012 to 11 July 2012, some of the emails purportedly exchanged between the parties used different addresses.  The address purportedly adopted for Hoptai was [email protected] (“the Hoptia address”) and that purportedly adopted for Propegal was [email protected] (“the Hotmail address”).

10.Propegal claimed to have no knowledge of the Hoptia address and the Hotmail address.  Its case was that some unknown third parties were able to hack into the websites of Hoptai and Propegal, so that when the “reply to” button was pressed in Propegal’s computer, the Hoptai address would be changed to the Hoptia address, and when Hoptai typed “Carolina” on its computer, the Hotmail address would appear instead of the Propegal address.  By the diversion of emails from a genuine party to a fake address, the hackers copied the contents of the original email that was intercepted onto another email with necessary editing and sent it to the other genuine party using a fake address.  By conducting an exchange of emails in this way over a period, the hackers eventually gave alternative payment instructions to Hoptai which resulted in the latter paying the balance of the purchase price on 3 July 2012 into an account in DBS Bank in Singapore in the name of another entity, Novic Pte Ltd (“Novic”), instead of the account of Propegal at Banco Popular.

11.The goods arrived in Hong Kong on 8 July but Propegal did not release the bill of lading to Hoptai to enable the latter to collect the goods.  On 11 July, Carolina informed Joseph on the telephone that Propegal had not received the balance of the purchase price, that she had never used the Hotmail address and she had never requested Hoptai to remit the balance to the bank account in Singapore.

The judge’s findings

12.The main issues before the judge were whether Hoptai had made payment for the balance of the purchase price to Propegal under the Contract, and whether the email accounts of the parties were hacked so that Hoptai was tricked into making payment to Novic.

13.As noted by the judge, no expert evidence was adduced to support the theory of computer hacking and the significance is that to a large extent reliance has to be placed on the evidence given by Joseph and Cindy for the plaintiff and Carolina for the defendant[2].

14.Apart from the email communications, it was not in dispute that there had been telephone conversations between the parties on 4, 6 and 29 June and 3, 6 and 10 July 2012.  The witnesses on each side called in aid the telephone conversations in support of the evidence they were giving, asking the court to compare the contents of both the allegedly spurious emails and the genuine ones with what was claimed to have been said on the telephone[3].  The judge found the evidence given in respect of the telephone conversations crucial and was of the greatest assistance to him in determining where the truth of the matter lay[4].

15.The judge preferred the evidence of Joseph and Cindy.  He found both were “excellent witnesses” and their evidence “related in a coherent and logical way with the contents of the various emails and with the situations faced by the parties”[5].  He came to the view that it was “clearly [his] impression that Carolina was not a truthful or reliable witness”, he was “most unimpressed with Carolina as a witness” and “in the context of the evidence as a whole [her evidence] made no sense whatever”[6].  He had “no doubt” that the plaintiff’s evidence was to be preferred to that of Carolina’s where there was a disparity between the evidence of either Joseph or Cindy and the evidence of Carolina[7].

16.On the evidence of Joseph and Cindy of the telephone conversations as accepted by the judge,

(1) on 4 June 2012, Joseph asked Carolina for an explanation for the change of payment instructions from the Banco Popular account to an account of XRF Investments Ltd (which was at the Hellenic Bank in Cyprus).  Carolina replied this had been done on the instructions of her boss Juan Rojas as there had been problems with the bank normally used by the defendant.  She undertook that any additional charges involved with the change would be defrayed by the defendant[8];

(2) on 6 June 2012, Carolina reminded Joseph to remit the money to the XRF Cyprus account and apologised for the inconvenience caused[9];

(3) on 29 June 2012, Joseph told Carolina he was upset by her requests to change the payment instructions three times.  At first the plaintiff was asked to pay to the XRF Cyprus account instead, then it was changed to the Capital Cyprus account (an account in the name of Capital World International Ltd at the Eurobank in Cyprus).  After money was paid into the Capital Cyprus account, the plaintiff was asked to get a refund from the bank and pay the funds into a third bank account in the name of Novic in Singapore.  Carolina apologised for the changes and said the defendant had some problems with the Capital Cyprus account and begged for understanding.  She repeated she would give the plaintiff another account for the remittance and the defendant would pay the bank charges incurred.  Joseph told Carolina he would ask Cindy to arrange the remittance[10];

(4) on 3 July 2012, Joseph told Carolina he hoped this was the last time she changed the payment instructions.  She again asked for understanding as there were problems with the defendant’s bank accounts[11];

(5) on 6 July 2012, Carolina told Cindy she was still awaiting confirmation from the bank they had received the purchase moneys and that the plaintiff would receive the shipping documents on Monday 9 July.  This was confirmed by an email sent by Carolina and received by Cindy after the telephone conversation.  This was significant as the email contained almost exactly the same details as had been referred to in the conversation, indicating either Carolina had been the author of the email or that the hacker of the computer system had also hacked the telephone line.  The inference that the telephone line must have been hacked was “highly improbable”[12];

(6) on 10 July 2012, Cindy faxed a copy of the remittance advice to the defendant showing that the plaintiff had deposited the funds into the account of Novic.  Carolina sent a fax on the same day confirming receipt of the same and suggested in the fax that Cindy should contact Novic by swift code and advised Cindy to liaise with the bank to stop the payment to Novic’s account.  Cindy telephoned Carolina and asked Carolina to communicate with Novic as Cindy had been unable to obtain the swift code and Carolina had been the party who had brought Novic into the transaction.  The judge found it “hard to believe” that Carolina’s suspicions had not been aroused (as she had said in evidence) when she was informed that money was paid into Novic’s account[13].

17.The judge made these findings of fact in conclusion: that Carolina did send the Hotmail address emails and that being the case did on behalf of the defendant give the alternative payment instructions to the plaintiff; and that the plaintiff did pay the balance of the purchase price of the goods to Novic on the instructions of Carolina[14].

The approach in this appeal

18.The defendant has an onerous burden to discharge in seeking to overturn the findings of primary fact of the trial judge, where the findings were reached based on an evaluation of the oral evidence and the judge’s assessment of the credibility of the witnesses.  It is well established the appeal court should only intervene if it was satisfied that the judge’s conclusion on the facts was “plainly wrong”, even though the appeal court did not have the advantages enjoyed by the trial judge of receiving the evidence at first hand.  If the appeal court was not so satisfied, it should defer to the trial judge’s conclusion even if in some doubt as to the correctness of the judge’s decision on the facts (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42).

19.The Court of Appeal has revisited these well known principles in some recent decisions, in which we have cited more recent decisions of the Privy Council and the Supreme Court in England.

20.In China Gold Finance Limited v CIL Holdings Limited & Ors, CACV 11/2015, in which Lam VP gave the judgment of the court on 27 November 2015, the Vice President made a comprehensive review of the proper scope of an appeal against findings of fact in §§11 to 25.

21.After citing the authorities[15], Lam VP stated the correct principles and approach as follows:

“14. These authorities explained the limits of an appellate court in reversing the findings of fact of the primary judge.  We used the expression “primary judge” because it emphasizes the primary role of the first instance judge in the assessment of evidence and making of relevant findings of fact.  In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge.  It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

15. In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court.  As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge.  There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other. That would not be a ground for intervention.

16. Thus, in an appeal, it is not helpful if counsel and litigant (acted in person) only repeat submissions already advanced and considered by the primary judge at the trial.  The starting point should be the judgment of the primary judge and the identification of palpable errors (which must be errors of such nature which warrants intervention from this court) in the judgment.  The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

17. We respectfully agree with the judgment of the Privy Council in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd, supra, where Lord Hodge explained at paragraph 12 the phrase “plainly wrong” in the context of an appeal against a finding of fact:

“ This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts … Rather it directs the appellate court to consider whether it was permissible for the judge at first instance to make the findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed record of the evidence. The court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions.”

18. Similar statement was made by Lord Reed in Henderson v Foxworth Investments Ltd, supra at paragraph 62.

19. The kinds of mistake which could engage an appellate court’s power of intervention were recently explained by Lord Neuberger in In re B (A Child) [2013] 1 WLR 1911, at paragraph 53:

“ …where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it.”

20. In addition to the traditional explanation for such a limitation on appellate intervention by reference to the trial judge’s advantage in assessment of witnesses after hearing their evidence, Lord Neuberger also provided further explanations in light of modern litigation ethos:

“ This can also be justified on grounds of policy (party should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).”

21. To the same effect, Lord Hodge said in Carlyle v Royal Bank of Scotland, supra, paragraph 22:

“ The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the first instance judge has in assessing the credibility of witnesses. It is the first instance judge who is assigned the task of determining the fact, not the appeal court. The re-opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy. It is likely that the judge who has heard the evidence over an extended period will have a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence …”

22. With the recognition of the rationale for appellate restraint in this light, there is also a greater appreciation of the need to exercise restraint in respect of findings of secondary facts based on inference drawn from findings of primary fact, see Beacon Insurance Co Ltd v Maharaj Bookstore Ltd, supra, paragraph 17; Pang Ketian Sally v Tam Yuk Hung Annie, supra, paragraphs 26 to 32; Ageas Insurance Co Ltd v Lam Hau Wah Inneo, supra, paragraphs 29 to 30.

23. See also the well know statement of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372 on the findings of fact by a judge as inherently incomplete statement of the impression upon him or her and the judgment of Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen, supra.

24. In To Pui Kui v Ng Kwok Piu, supra, after referring to McGraddie v McGraddie, supra, this court also explained at paragraphs 12 to 16 why institutionally it is not appropriate for our Court of Appeal to take over the role of the trial judge as the primary assessor of the evidence.

25. A notice of appeal should set out the grounds of appeal by identifying errors are of a nature which truly entitled the court of appeal to intervene with a finding of fact.  We regret to say that in many cases we have seen numerous paragraphs which are in substance closing submissions made at the trial and references to evidence.  We are firmly of the view that statements of such nature have no place in a proper notice of appeal.”

22.To similar effect is another recent decision of the Court of Appeal in Singh Harjit v Determination Business Limited trading as Muse Studio, CACV 68/2015, 24 November 2015, at §§6 to 11.

23.With this, I turn to consider the grounds of appeal advanced by Mr Coleman, SC[16] in his oral and written submissions.  They will be considered in the order as set out in the supplementary notice of appeal.

1^st ground of appeal

24.This is a case of deliberate fraud.  The only difference in the parties’ case is that Propegal alleged the false payment instructions emanated from unknown third parties, whereas Hoptai alleged they were sent by Carolina who was authorised by Propegal to communicate with Hoptai.  The complaint here is that an elaborate premeditated fraud was involved, and the judge had failed to apply correctly the test in HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at 361H in requiring cogent evidence to be adduced to prove the serious allegations by Hoptai.

25.The parties addressed the judge on the burden and standard of proof.  The judge dealt with the defendant’s submissions on the burden of proof that it was for the plaintiff to prove the hacking of emails had not taken place[17].  The judge did not consider it a constructive exercise to single out a particular issue or argue that the sole criteria for determining the issue has to be based upon whom the burden of proof lies, citing the judgment of Yuen JA in FBC Construction Co Ltd v Lee Ben [2014] 2 HKLRD 1054 at §§82 and 83[18].  Although the judge did not mention specifically the standard of proof, it can hardly be suggested he did not bear in mind that compelling evidence is required to prove allegations of fraud in a civil case on a preponderance of probability, as this was covered in the defendant’s closing submission and Lee Ming Tee was cited to him[19].

26.There was certainly evidence before the judge, as summarised earlier, which could constitute cogent and compelling evidence that the false payment instructions emanated from Carolina.  Whether he had failed to consider the matters urged upon him by the defendant relevant to inherent probabilities will be discussed in the next ground of appeal.  There is nothing of substance in the first ground.

2^nd ground of appeal

27.The argument here was that the judge had failed to take into account contemporaneous documents and/or unchallenged evidence which rendered the plaintiff’s case inherently improbable.  Mr Coleman submitted it does not appear from the judgment that the judge had undertaken any proper analysis of important contemporaneous documents and material aspects of undisputed or indisputable evidence in order to test his assessment of the credibility of witnesses against the inherent probabilities.

28.Mr Coleman cited Litton NPJ in Tradepower (Holdings) Ltd v Tradepower (HK) Ltd (2009) 12 HKCFAR 417 at §140 in which it was said:

“Appellate courts have been warned, repeatedly, against trial judges placing undue reliance upon demeanour and resolving factual issues by using the demeanour of witnesses isolated from the inherent probabilities of the case. … The trial judge’s role is to try issues, not personalities. A broad statement “I find Mr X a credible witness” is, except in the simplest of cases, seldom helpful. When coupled with the stance “I accept everything he says unless the other side can demonstrate its untruth” the court is, in effect, slanting the scales unfairly against the other party.”

29.Mr Coleman quoted what Godfrey JA said in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663E to F, urging this court to “re-consider all the materials before the judge, to make up its own mind, not disregarding the judgment below but carefully weighing and considering it, not shrinking from overruling it, if on full consideration, it comes to the conclusion that the trial judge’s finding was wrong.”

30.The matters which Mr Coleman submitted to be pertinent to his contention that the judge had failed to take into account inherent probabilities and contemporaneous documents were not mentioned specifically in the judgment.  But all these matters relied on by Mr Coleman were canvassed in detail in the defendant’s closing submission before the judge and brought specifically to the judge’s attention.  In Mr Coleman’s skeleton submission before us, he gave us the references in the defendant’s closing submission in which each of these matters was raised and discussed in sections D, G and H: that there was no obvious incentive for Propegal to commit the fraud; that Propegal’s conduct was highly inconsistent with that of a fraudster; that there was suspicious behaviour of Novic bearing the hallmarks of cyber fraud; that there were errors in the emails from the Hotmail address which would not have been made by Carolina; that the invoices appeared to have been doctored, with the payment instructions to Banco Popular removed and replaced by payment instructions to Hellenic Bank; that there were two parallel chains of emails, one between the Propegal address and the Hoptia address and another between the Hoptai address and the Hotmail address, with similar contents to each other but significant changes were made by the fraudster in some of the emails to cover his tracks; and that the Hotmail address and Hoptia address were controlled by different people.

31.I do not propose to go into the details of the points made by Mr Coleman which he said the judge should have considered and analysed.  As Lam VP has said in China Gold Finance Limited at §16, it is unhelpful on appeal to repeat submissions already advanced and considered by the primary judge at the trial.  The mere assertion that the judge should have reached an opposite conclusion because of points advanced in the closing submissions below does not raise palpable errors which would warrant appellate intervention.

32.Nor do I think it appropriate for this court to undertake the exercise of re-considering all the evidence before the judge, and attempting to weigh the evidence and ascertain the facts in light of the submissions made as to inherent probabilities, as we are not equipped to deal with this.  We simply do not have the full picture and our perception may well be narrowed or distorted by concentrating on particular parts of the evidence to which our attention is directed.  As Godfrey JA had also said in Tang Kwok Ming at 663E to G, an appeal to the Court of Appeal is by way of re-hearing on the papers.  The appeal court does not re-try the case.  It will not usurp the function of the trial judge to find the facts.  And it will certainly not disturb his findings of primary fact where these are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another.

33.The judge did not deal with any of the points made in sections D, G and H in the defendant’s closing submission in his judgment.  There are two questions arising out of this.  The first is whether he had failed to consider matters relevant to inherent probabilities urged upon him by the defendant when he assessed the testimonies of the witnesses.  The second is whether he had given adequate reasons for his decision.

34.I would answer the first question in the negative.  The judge could not have overlooked the entire sections D, G and H, which featured prominently in the defendant’s closing submission.  Besides, he had addressed section E of the defendant’s submission in his judgment dealing with the burden of proof.  I would adopt Lam VP’s approach in Yui Chung Yin v Ng Kit Sum, CACV 25/2013, 27 November 2015 at §28.  The judge had given his judgment promptly after the trial.  There is no valid basis to suggest that he had forgotten those parts of the defendant’s submission or had not considered them.  It is more probable that he had considered them and decided to reject them altogether.

35.Regarding the adequacy of the reasons in the judgment, this must be approached sensibly having regard to the particular circumstances of the case (Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 291, per Li CJ).  In Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106, Lam VP considered some of the relevant authorities in this regard.  I find the statements of Chan CJHC in Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634 at 639 worth repeating here:

“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision.”

36.In dealing with a challenge based on inadequacy of reasons in a judgment, the approach is that laid down by the English Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at §26 and endorsed in Welltus Ltd at §23:

“Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the Judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this Court, in the light of Flannery’s case[20] in Ludlow v National Power plc17 November 2000; Court of Appeal (Civil Division) Transcript No 1945 of 2000. If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial.”

37.In assessing whether the judge’s reason is apparent and if it could be a valid basis for his judgment, I have found it helpful to have regard to what was said in English v Emery Reimbold & Strick Ltd at §19:

“It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.”

38.Looking at the judgment fairly and as a whole, it seems to me that in assessing the credibility of the witnesses, the judge had identified and explained the factors which are critical to his decision.  I have mentioned them in the earlier parts of this judgment.  This is not a situation in which the judge merely made the kind of broad statements decried by Litton NPJ in Tradepower that he found a particular witness credible or another witness unimpressive.  The judge had given comprehensive reasons why he preferred the evidence of Joseph and Cindy to that of Carolina.  He found the evidence of Joseph and Cindy “related in a coherent and logical way with the contents of the various emails and with the situation faced by the parties”[21], whereas the evidence of Carolina was such that “in the context of the evidence as a whole [her evidence] made no sense whatever”[22].  The conflict of evidence before him was stark, and he was clearly aware of the need to assess a witness’s credibility by testing it against the inherent probabilities and whether it is contradicted by undisputed or indisputable evidence in a material way, as that was expressly urged upon him in the plaintiff’s closing submission[23].

39.The judge’s approach to the evidence was not to attempt to resolve or find an answer or possible explanation to the oddities in the parallel chains of emails disclosed on both sides, which the defendant’s trial counsel made much of.  The court was not put in the full picture and there are many things it did not know about as to how the fraudulent scheme was carried out.  One glaring example was why the funds paid into the Capital Cyprus account had to be repaid to the plaintiff and another account in the name of Novic in a different bank had to be used.  It may well be prudent not to go into matters that are speculative or may bear more than one possible explanation.  In the circumstances, the judge concentrated on just one crucial issue, namely, whether Carolina did give the alternative payment instructions to the plaintiff, and decided that should be sufficient for the purpose of deciding the dispute before him.  He steered clear from conjectures or inferences whether anyone else was involved in the fraud and what role, if any, was played by any other accomplice.

40.The judge could not be faulted for taking this approach.  And he was fully entitled to reject the defendant’s submissions on the factual aspects of the case and accept other evidence to the contrary.  It would have been better if he had mentioned in the judgment he had rejected all of the submissions in sections D, G and H of the defendant’s closing submission and given some explanation for doing so or why he did not consider it necessary to deal with them in the judgment.  Had he done so, the losing party would have been in no doubt whether there is any error in the judgment before it decided to bring this appeal.

41.But, as the English Court of Appeal had said in English v Emery Reimbold & Strick Ltd at §19, there is no template for what could be regarded as adequate reason in a judgment.  Having reviewed the judgment and the submissions made to the judge, I am satisfied that the issues which were critical to his decision were identified by the judge and he had explained the process by which he resolved the critical issues.

42.The mere fact that the judge had not dealt with the matters urged upon him does not mean he had not considered them or had overlooked them when he made his deliberation in the judgment.  Nor does it mean he had not assessed the evidence with regard to the inherent probabilities in light of the requirement for fraud to be established on cogent evidence.  Above all, it could not be said that the judge’s finding of fact was one which there was no evidence to support, or one which no reasonable judge could have reached in the face of the evidence as a whole.  There being no identifiable error and no misdirection, there is no basis for the appeal court to intervene.

3^rd ground of appeal

43.This ground relates to the complaint that in assessing the evidence of Joseph, the judge had failed to take into account that Joseph’s evidence was contradicted by contemporaneous documents and communications being: (1) the report filed by Joseph’s friend Madam Soh Yet Kee on his behalf to the police in Singapore; (2) emails which showed no allegation of fraud was made by the plaintiff against the defendant despite Joseph’s evidence he was suspicious of the defendant as soon as the anomalies about the email addresses were discovered, and instead it was mentioned in Hoptai’s email to Propegal on 12 July 2012 that it “might be Propegal and Hoptai are the victim [sic] in this occasion”; (3) emails which showed that Joseph took the initiative to approach the defendant for business in December 2009, March 2011 and April 2012 showing that his attempt to discredit the defendant as dishonest by relying on a mis-delivery incident in 2009 was not credible.

44.Mr Coleman submitted the above matters were overlooked or disregarded by the judge.

45.Again, the matters in (1), (2) and (3) were all raised and discussed in the defendant’s closing submission[24], although Mr Coleman did not give us the reference in his skeleton submission.  Besides, as pointed out by the plaintiff, to say the least there was ambiguity about the relevant sentence in the report of the Singapore police, so the judge was entitled to give little or no weight to the defendant’s different interpretation about that part of the report.  The other complaint in (2) also goes to the weight of the evidence, which was a matter for the trial judge.

46.The matter in (3) is of little significance.  There was no dispute that the plaintiff had stopped placing orders with the defendant for about two years since the 2009 incident until April 2012.  Whether in the meantime Joseph had taken the initiative to approach the defendant for business can hardly be regarded to be of any material importance to undermine the judge’s conclusions.

47.Mr Coleman relied also on other points raised by the defendant at trial in respect of Joseph’s credibility and invited this court to read sections I and J of the defendant’s closing submissions at trial.  As mentioned earlier, this is not the proper way to conduct an appeal.  Counsel should focus on identifying palpable errors made by the trial judge which would call for intervention by the appeal court, instead of merely repeating submissions made below.

4^th ground of appeal

48.This relates to the complaint that the judge should not have accepted Cindy’s evidence that there was a problem with the time stamp in her computer and he should have rejected her evidence that the relevant telephone conversation she had with Carolina (which took place at 15:56 hours on 6 July 2012) came after the email of 6 July was sent (which bore the time stamp of 9:08 hours).

49.The judge accepted Cindy’s evidence[25] that the relevant email was received at 17:08 hours[26].  It was submitted by Mr Coleman that even if there was a problem with the time stamp in her computer this does not prove the actual time of receipt of the email was at 17:08 hours and that the judge erred in assuming that the email was in fact sent at 17:08 hours.

50.The relevant part of Cindy’s evidence in cross-examination is clear.  She disagreed with the suggestion that because of the time problem in her computer, she was not sure at what time the email was actually sent.  She refuted the suggestion that her recollection she received the email only after the telephone conversation may be wrong, or that she had mixed up what was said in the email with what was actually discussed in the telephone conversation[27].  The judge was fully entitled to accept her evidence.  There is no substance in this ground of appeal.

Conclusion

51.None of the arguments advanced on appeal by the defendant are of merit.  We have therefore dismissed the appeal with costs to the plaintiff.

Hon Barma JA:

52.I agree with the judgment of Kwan JA.

Mr Ambrose Ho SC and Mr Kenny C P Lin, instructed by Myra Li & Co, for the Plaintiff (Respondent)

Mr Russell Coleman SC and Mr Val P Y Chow, instructed by Christine M. Koo & Ip, for the Defendant (Appellant)