Arotamas International (HK) Ltd v. Melofield Nursery and Landscape Contractor Ltd

DCCJ 309/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.309 OF 2015

____________

____________

Date of Hearing: 21 Feb 2017

Date of Decision : 21 Feb 2017

Date of Reasons for Decision : 22 Feb 2017

----------------------------------------

REASONS FOR DECISION

----------------------------------------

1.This is defendant’s application for leave to appeal against my judgment in this action dated 4 Jan 2017 (“the judgment”) by way of its summons filed on 27 Jan 2017 (“the leave summons”).

2.Mr Val Chow of counsel (“Mr Chow”) appeared for defendant as he did at trial. Ms Lorraine Tsang of counsel (“Ms Tsang”) appeared for plaintiff before me and she opposed the leave summons. At the trial, the plaintiff was represented by counsel Mr Billy Ma (“Mr Ma”).

3.After hearing Mr Chow and Ms Tsang, I dismissed the leave summons with costs to the plaintiff.

4.Now I give my reasons.

5.For background to the action, the issues in dispute, the parties’ rival evidence & submissions, my findings, and my reasons thereof, I refer to the judgment and will adopt below the same abbreviations.

Applicable law & principles

6.Under s.63A(2) of the District Court Ordinance, Cap.336 (“DCO”), leave to appeal shall not be granted unless this court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

7.The test of whether an appeal has a reasonable prospect of success under s.63A of DCO is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: KNM v HTF, unreported, HCMP 288/2011, 7 Sept 2011, para 9, per Fok JA (as he then was).

8.Where proposed grounds of appeal seek to attack findings of fact made by the trial judge, “unless the applicant can show that the judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, [the court of appeal] will not interfere with those findings of fact”: KNM v HTF, supra, para 23, per Fok JA (as he then was).

9.In considering an appeal against a primary finding of fact, the question for the court of appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The court of appeal should intervene if so satisfied and should defer to the trial judge’s conclusion even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Others [2002] 3 HKLRD 1, 13I-14A, per Bokhary PJ.

Analysis

10.I have fully and carefully considered all materials, all submissions and authorities put before me.

11.Two draft grounds of appeal are set out in the leave summons. I shall consider each of them in turn below.

Ground 1

12.Firstly, in finding that the parties had orally agreed for a total fee of $40,000 for both the transplantation works and the tree cutting works, it is submitted that I erred in failing at para 61 of the judgment to draw adverse inference against plaintiff for its failure to call Irene to give evidence when Mr Sonny admitted that there was no reason why she could not be called to give evidence.

13.Mr Chow repeated his closing submissions at trial that the email was significant in that its contents contradict plaintiff’s case: see para 58 of the judgment. He repeated Mr Sonny’s evidence or explanation that he saw the email for the first time at trial and submitted that the same was incredible and astonishing.

14.Despite the aforesaid, this court, said Mr Chow, declined to draw the adverse inference against plaintiff at para 61 of the judgment for the reason that there was a 4 year lapse between the email and the agreement, which reason, he submitted, is irrelevant.

15.This ground is, I think, totally misconceived.

16.This court nowhere said at para 61 of the judgment that it declined to draw an adverse inference against plaintiff for failing to call Irene.

17.As Ms Tsang noticed and correctly submitted, this court had already taken that failure to call Irene into account at para 61 of the judgment, but did not feel able to attach as much weight to the email as it did with the invoice, due to the 4-year long lapse of time between the email and the agreement.

18.This court had considered the relative weight of the email and that of the invoice. At para 54 & 57 of the judgment, this court found the invoice, another important piece of documentary evidence which was contemporaneous with the agreement, to have recorded accurately the gist of the agreement and gave it full weight.

19.The 4-year time lapse the email had with the agreement is the reason, and a valid reason, this court gave the email less weight as compared with that of the invoice.

20.In any event, as was said by Mr Chow at para 3 of his written closing submissions, this crucial dispute of fact “is largely dependent on the credibility of Mr Sonny and Mr Lau”.

21.At the end of the day, in making its primary finding of fact on this issue, this court accepted the evidence of Mr Sonny and the admissions of Mr Lau, and rejected such contrary evidence of Mr Lau after having considered all the evidence received at trial first-hand, including having regard to their inherent probabilities: see para 62 & 63 of the judgment.

Ground 2

22.Secondly, it is submitted that I erred in finding that the plants shown in defence photos are not the 9 plants for the following 3 reasons.

Ground 2(i)

23.It is complained that I erred in ruling at 84 of the judgment that the burden of proof lies on the defendant to show that the plants shown in defence photos are the 9 plants.

24.Mr Chow submitted that the burden of proof on an issue depends on parties’ allegation in their pleadings. According to prayer of the statement of claim (“SOC”), it was the plaintiff, he pointed out, which sought specific delivery of the 9 plants and it must discharge its onus to satisfy this court that it is entitled to such relief.

25.He repeated such general principles governing grant of specific delivery (as opposed to awarding damages) which this court had recited at para 89 of the judgment, and submitted that it is incumbent on the plaintiff to positively identify which piece of property, by reason of its uniqueness or otherwise, it was so entitled to such exceptional relief of specific delivery.

26.To place such burden on the defendant is, he submitted, unsatisfactory for a number of reasons, including causing difficulty to defendant. On the other hand, it would not be unfair to put such burden on plaintiff and that is consistent with plaintiff’s burden on enforcement in the event of any contempt application etc.

27.Mr Chow also submitted in his written skeleton that this issue is of some importance as it may have an impact on other cases on detinue where a plaintiff is seeking specific delivery. It is in public interest for the court of appeal to consider this issue.

28.I think Mr Chow submissions on this ground are simply unsustainable when one looks clearly at the whole picture.

29.To start with SOC, by way of elements of the causes of action of detinue and conversion, the plaintiff does not need to prove the plants shown in defence photos are not the 9 plants. It needs only to prove the 9 plants it owned and removed away were wrongfully detained and/or coverted by defendant.

30.Coming to amended defence, it was pleaded at para 13 & 14 thereof that the defendant has taken good care of the 9 plants at all material times. It was averred that the 9 plants were kept in defendant’s nursery in or about July 2011 and Dec 2013. Subsequently, the 9 plants were transferred to their present location in or about Sept 2014 and in or about Feb 2015 respectively.

31.As was outlined at para 11, 18, 29, 71-73, 76 & 80 of the judgment, plaintiff’s case and evidence adduced at trial is that the 9 plants had been misappropriated by disappearance, death or sale, whereas defendant’s case and evidence adduced at trial is that they are now in defendant’s other nursery[1] and they were identified by Mr Lau as shown in defence photos.

32.Granted that it was defendant, by its witness Mr Lau, who affirmatively identified and alleged that the plants shown in defence photos are the 9 plants, it is no doubt, I think, on the defendant to prove such allegation on the balance of probabilities.

33.As a matter of principles, imposing such legal burden on the defendant pose, I think, no undue difficulty to it. Since late 2010, the defendant had taken possession of the 9 plants with the obligation to safe keep and return them to plaintiff.

34.Such facts tending to prove the plants shown in defence photos are the 9 plants are plainly, I think, within defendant’s peculiar knowledge and not that of the plaintiff. As Ms Tsang pointed out, the defendant did not even bother to tell the plaintiff the alleged new whereabouts of the 9 plants after they were removed away from defendant’s nursery (para 86 of the judgment). It would, in my view, be unjust to place the burden on plaintiff as it would cause undue difficulty to it.

35.Enforcement dispute, if arise in future, is a separate matter and should not, I think, affect the conclusion above. Whenever an order for specific delivery is made, such dispute could arise. The could-be problem in this case is more acute due to the things being ordered to be returned being living plants.

36.As to making of specific delivery order, the plaintiff needs, I think, only to show that the 9 plants removed away were so valuable to it that damages could not fully compensate it to persuade me to exercise my discretion in its favour. As I pointed out at para 74 of the judgment, Mr Ma at his closing address opted for specific delivery of the 9 plants simpliciter and I so ordered at para 90 of the judgment.

37.To the contrary, Mr Chow made it clear at his closing address that defendant is willing to return plaintiff the 9 plants as identified and shown in defence photos and he asked for an order to that effect if this court is minded to grant specific delivery. With that stance taken by defendant at trial[2], it is, I think, certainly incumbent on defendant to make good its identification.

38.Moving to public interest, Mr Chow made no further oral submissions before me. With due respect, I simply do not see any in this case.

Ground 2(ii)

39.It is next complained that I erred in drawing adverse inference against defendant for lack of records or failure to call defendant’s staff to give evidence at para 84 to 87 of the judgment.

40.Mr Chow submitted that Mr Lau was not cross-examined on these 2 matters. Mr Lau was thus deprived the opportunity to explain. Such approach, it is submitted, offended the principles of drawing adverse inference and is also unfair by being contrary to the principle of Browne v Dunn.

41.This ground is also, I think, plainly misconceived.

42.This court nowhere said in para 84 to 87 of the judgment that it drew an adverse inference against defendant for failing to call its staff or produce records. It should be noted that, at the said para 86 & 87, this court made it clear that it had no idea whether such records or staff in fact existed or not. This court used the words “if any was kept at all” in para 86 and the words “if any” in para 87.

43.This court was in fact and in truth saying that the defence had no supporting evidence by means of records or other staff on top of “bare assertion” of Mr Lau[3], which was insufficient “to tilt the balance” in defendant’s favour “after everything before the court was considered”: see para 84 & 85 of the judgment.

44.Everything of course included Ms Lam’s evidence which this court cannot disregard (para 77 of the judgment) as Ms Tsang reminded this court, the plaintiff’s photos with markers in form of paper tags hung to the 9 plants (para 15 of the judgment) and the defence photos with plants but without any marker.

Ground 2(iii)

45.It is finally complained that I failed to assess each of the 9 plants individually but erroneously considered them as a whole.

46.Mr Chow submitted that it is incumbent on me to make a separate assessment of each individual plant in question rather than looking at the 9 plants as a whole.

47.The only example of such erroneous approach Mr Chow gave in his written skeleton is para 77 of the judgment, where this court noted that one Camellia (not two) shown in plaintiff’s photos had big trunk as was said and described by Ms Lam. He complained that the said evidence cannot extend to the other Camellia, let alone to the other 7 Podocarpus.

48.This last ground is, I think, completely groundless.

49.For considerable time spent at trial, both Mr Chow meticulously cross-examined Mr Sonny and Ms Lam, and Mr Ma meticulously cross-examined Mr Lau, on each of the plants shown in both plaintiff’s photos and defence photos, including asking questions about species of individual plant shown, asking question if individual plant was one of the 9 plants or not, asking witness to encircle individual plant on copy photos and asking witness to compare 2 or more plants shown on more than 1 photo etc.

50.Of course, in the process, the parties’ respective case whether the plants shown in defence photos are the 9 plants was put by Mr Chow and by Mr Ma to witness(es) of the other side.

51.To be clear, it was never defence case put at trial that some of the plants allegedly identified by Mr Lau in defence photos belonged to plaintiff and the rest did not; the defence case is that all the 9 plants allegedly identified by Mr Lau in defence photos are the 9 plants removed away from the property in the first place.

52.When it came to closing address, Mr Chow put as follows at para 31 of his written closing submissions: -

“The Court can obviously look at the photographs for itself to determine whether it is possible to say (from a layman’s perspective) whether the tree in one photo is the same tree as the other one in another photo. It is respectively submitted that this is simply impossible especially when the photos are taken at very different times. At most, it is submitted that one may roughly determine the two species of Plants by looking at the shape of the leaves and the flowers (italics supplied)”.

53.This court had indeed taken on this impossible task of comparing the plaintiff’s photos with defence photos: see para 84 of the judgment.

54.As is clear from different parts of the judgment, this court was at all times fully aware of the total number of Podocarpus and of Camellia it was dealing with and such specific evidence dealing with individual one(s) of these Podocarpus or Camellia: see para 1, 12, 16, 53, 73, 77, 78, 81, 82 and 98 of the judgment. Mr Chow’s single example of my “erroneous” approach at para 77 of the judgment is one among these many instances.

55.The said evidence of one Camellia shown in plaintiff’s photos having big trunk was but one piece of evidence among much identification evidence about individual plants shown in plaintiff’s photos and defence photos Ms Lam gave under meticulous cross-examination by Mr Chow. As was said above, I did not disregard her identification evidence and I took its entirety into account.

Conclusion

56.For the above reasons, the proposed grounds of appeal carry, I think, no reasonable prospect of success. Neither is it in the interest of justice for leave to be granted.

Disposition

57.Accordingly, I dismissed the leave summons as I did at para 3 above.

58.Finally, I thank both counsels for their assistance.

Ms Lorraine H.M Tsang, instructed by Tse Yuen Ting Wong, for the plaintiff

Mr Val Chow, instructed by Zhong Lun Law Firm, for the defendant