東莞市枝記市場投資管理有限公司 and Another v. Yip Kwok Chi
Read the full judgment text of CACV 153/2017 on BabelCite. This Court of Appeal judgment was delivered on 12 January 2018.
1. This is the defendant’s appeal against that part of the judgment of B Chu J by which he was ordered to pay to the 2 nd plaintiff $850,000 and that there was to be no order as to costs. The judgment was given on 3 June 2016 after a two‑day trial in December 2015. This appeal seeks to overturn the judge’s findings of fact. We dismissed it with costs on a party and party basis at the conclusion of the hearing. These are the reasons for our judgment.
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CACV 153/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 153 OF 2017 (ON APPEAL FROM HCA NO 1072 OF 2014) ________________________
________________________ Before: Hon Cheung JA, Kwan JA and G Lam J in Court Date of Hearing: 12 January 2018 Date of Judgment: 12 January 2018 Date of Reasons for Judgment: 19 January 2018 __________________________ REASONS FOR JUDGMENT __________________________ Hon Kwan JA (giving the reasons for judgment of the Court): 1.This is the defendant’s appeal against that part of the judgment of B Chu J by which he was ordered to pay to the 2nd plaintiff $850,000 and that there was to be no order as to costs. The judgment was given on 3 June 2016 after a two‑day trial in December 2015. This appeal seeks to overturn the judge’s findings of fact. We dismissed it with costs on a party and party basis at the conclusion of the hearing. These are the reasons for our judgment. The judgment below 2.The 1st plaintiff is a limited company incorporated in Mainland China. Its main business was and is the supply and wholesale of agricultural produce in the Mainland and Hong Kong. The 2nd plaintiff is the legal representative of the 1st plaintiff. The defendant operated a wholesale business of agricultural produce at a stall (“the Stall”) in the North District Wholesale Market. 3.In this action, the following claims were advanced by the 1st plaintiff, the 2nd plaintiff and the defendant:
4.The 2nd plaintiff and the defendant were the only witnesses to give evidence at the trial. As noted by the judge, the case involved mainly factual disputes and it was one party’s word against the other. The approach she adopted was to rely on contemporaneous documents and/or previous statements (to the police and the Agriculture Fisheries and Conservation Department) made by the parties before this litigation to test their evidence. She dismissed the 1st plaintiff’s claim for the 1st Debt and the defendant’s counterclaim. Her reasons may be summarised as follows:
5.The judge found in favour of the 2nd plaintiff for his claim of the 2nd Debt. Her reasoning was as follows:
6.The judge made a costs order nisi that there be no order as to costs, since neither the 1st plaintiff nor the defendant was wholly successful. She declined to vary the order nisi on the plaintiffs’ application in her decision of 16 November 2016. This appeal 7.Mr Philip Wong, who appeared for the defendant here and below, argued these grounds on appeal:
8.Mr Wong cited a number of criminal cases and one case in professional disciplinary proceedings to support his arguments. None of the grounds he argued are of merit. 9.His complaint in ground (1) was that in accepting the 2nd plaintiff’s evidence on the 2nd Debt whilst rejecting his evidence on the 1st Debt, the judge had allowed herself to “pick out the plums and leave the duff”, citing R v Shippey (Colin) [1988] Crim L R 767, which was said in the context of the assessment of evidence as a whole in ruling on a submission of no case to answer. This is far removed from the present situation. The judge in a civil trial is perfectly entitled to accept parts of a witness’ evidence and to reject other parts. The mere fact that a witness was held not to be credible in one aspect does not mean his evidence should be rejected in total. It must depend on the particular circumstances and the extent to which the evidence rejected may impact on other parts of the evidence. 10.Here, detailed reasons have been given by the judge why she rejected the 2nd plaintiff’s evidence regarding the 1st Debt. She had reviewed the evidence in relation to the 2nd Debt and explained why she came to the conclusion that the 2nd plaintiff’s version was the more probable one. The reasons for rejecting the 2nd plaintiff’s evidence on the 1st Debt had no apparent impact or bearing on his evidence regarding the 2nd Debt. In respect of the 2nd Debt, there is no question of the plaintiffs’ case as pleaded in the statement of claim and testified by the 2nd plaintiff as being inconsistent with the case put forward by the 2nd plaintiff’s counsel in his criminal trial. Furthermore, as noted by the judge, the 2nd plaintiff was not even cross-examined about the 2nd Debt or the agreement to repay the 2nd Debt or the three batches of cheques. There is no inconsistency in the judge’s evaluation of different aspects of the 2nd plaintiff’s evidence and the different findings of fact she made in respect of each claim. 11.Contrary to the complaint in (2), the judge had given adequate reasons why she made the finding that the 2nd plaintiff’s version on the 2nd Debt was the more probable one. She was right to compare and test the 2nd plaintiff’s evidence with the contemporaneous documentation, where the events had taken place long before the time of trial. She was entitled to rely on the three batches of cheques, each of which came up to exactly $850,000. It was not the case that the judge chose not to consider the 2nd plaintiff’s credibility, as contended by Mr Wong. Rather, the judge had considered his evidence, examined it against the contemporaneous documentation, compared it with the defendant’s evidence, and decided to accept the 2nd plaintiff’s evidence. 12.The argument invoking the rule in Browne v Dunn cannot get off the ground. We have been referred by the plaintiffs’ counsel Mr Tony Li to the relevant parts of the transcript which showed quite clearly that the defendant was cross-examined as to why each of the three batches of cheques came up to $850,000. 13.There is no basis whatsoever for the appeal court to interfere with the judge’s findings of fact. There is nothing to indicate that the judge was wrong, let alone plainly wrong, in making the findings of fact sought to be challenged. 14.The appeal as to the costs order there be no order as to costs is equally unmeritorious. It was contended that the judge had failed to consider sufficiently that substantial time and effort was spent on arguing the 1st Debt (in which the defendant succeeded) and so the no costs order was disproportionate to the reasonable expense incurred by the defendant in the trial. 15.The defendant did not seek to vary the order nisi there be no order as to costs. The application to vary was made by the plaintiffs. In any event, the judge had fully considered the time and costs spent in arguing the 1st Debt. She also took into account that notwithstanding the 1st plaintiff’s claim against the defendant was dismissed, the defendant should be deprived of any costs as a result of any apportionment, in view of the defendant’s own evidence during the trial. She had pointed out in the main judgment that the defendant had changed his version of events several times and his evidence was not consistent with his previous statements. And she did not find in favour of his case and his counterclaim was dismissed. After considering all the circumstances and the parties’ conduct, the judge declined to vary her order nisi on costs. 16.There is no basis at all to interfere with the judge’s exercise of her discretion on costs. It has not been shown that the judge had made errors of law or fact, or had acted in disregard of principle, or had taken irrelevant matters into account, or had failed to take into account relevant matters, or that her decision was plainly wrong or outside the generous ambit within which a reasonable disagreement is possible. 17.We have therefore dismissed the appeal with costs.
Mr Philip Wong, instructed by Jim & Co, for the Defendant (Appellant) Mr Tony C Y Li, instructed by Tso Au Yim & Yeung, for the 1st and 2nd Plaintiffs (Respondents) | |||||||||||||||||||||
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